A Well Regulated Militia
A Well Regulated Militia
January 31, 2013
“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.”
First Annual Message to Congress (January 8, 1790)
The Massachusetts Bay Colony was founded in 1630. Over 5,000 men, women, and children made the two-month voyage to the New World, leaving the relative comfort and safety of England behind in an effort to break free of religious intolerance, and to manage their communities the way they saw fit. In doing so, their actions tread new ground in the country that would become the United States of America. On13 December 13, 1636, the Massachusetts General Court in Salem, for the first time in the history of the North American continent, established that all able-bodied men between the ages of 16 and 60 were required to join the militia. The North, South, and East Regiments were established with this order. The decree excluded ministers and judges. Simply stated, citizen-soldiers who mustered for military training could be and would be called upon to fight when needed.
Self-sufficiency proved instrumental. In a new land, hiring mercenary fighters in the European tradition to ward off Indian attacks would be impossible. For one thing, the colonists had no money. Other foreign interests in the New World such as the French or Spanish, even if they were available for defensive purposes, did not share English views on religion and political matters. They would have seriously undermined the stability of the Massachusetts Bay Colony. Governing and policing the settlement would have to be left to the colonists themselves. Therefore, the militia system of self-defense brought from England had the best chance of succeeding for the colonists. Soon after the establishment of the militia in Massachusetts, the entire New England region defended itself against the aggression of the Pequot nation. Other colonies such as Connecticut and Rhode Island mustered militia units to fight the Indian tribe, and succeeded in forcing the Pequots to capitulate in 1638. Ultimately, the militia enlisted from the many small villages proved a strong component in building confidence for the settlement as a whole.
During the Revolution the Continental Congress recognized the importance of having a body of men to reinforce the Continental, or Regular, Army and on July 18, 1775, recommended “that all able-bodied, effective men, between 16 and 50 years of age be formed into companies of militia.” They could be called out only with the consent of the State legislatures.
The Constitutional Convention open on 25 May 1787, at a time when informed opinion identified three threats to national security: civil insurrections like the one that had occurred in western Massachusetts during the previous year, Indian attacks aided and abetted by the British on the frontier, and, more remotely, invasion by European powers. The delegates in Philadelphia set about providing the new national government with means to face these three possible threats. The delegates had to consider two different approaches to the development of military forces. One, reflecting the experiences of the Continental Army, held that the nation needed a trained, full-time military force capable of defeating an organized enemy on the battlefield; the other emphasized the traditional role of the citizen-soldier militiaman defending his home and region during short-lived emergencies. Seeking as broad a consensus as possible, the Convention chose to employ elements of both. Even Elbridge Gerry, probably the most extreme anticentralist in attendance, did not object to the premise that the central government could establish a small peacetime military force. On 18 August 1787 the discussion shifted to the “Militia Clause” a much more emotional issue. In its totality, the Convention arrived at a very important set of decisions concerning military matters with relatively little disagreement. While the national government might employ the militia for the common defense, that authority was checked by the states, which retained authority to appoint their militia officers and to supervise the peacetime training of citizen-soldiers.
Article I, Section 8 of the U.S. Constitution contains a series of “militia clauses,” vesting distinct authority and responsibilities in the federal government and the state governments. Article I, Section 8; Clause 15 provides that the Congress has three constitutional grounds for calling up the militia — “to execute the laws of the Union, suppress insurrection and repel invasions.” All three standards appear to be applicable only to the Territory of the United States. Article I, Section 8; Clause 16 gives Congress the power “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.” That same clause specifically reserves to the States the authority to establish a state-based militia, to appoint the officers and to train the militia according to the discipline prescribed by the Congress. As written, the clause seeks to limit federal power over State militias during peacetime.
A majority decided on 28 September 1787 to forward it to the states for ratification. The opponents, who came to be called the Antifederalists, tended to be inherently suspicious of any concentration of power. They feared a stronger national government because it was further removed from the people than the state governments and because of the potential they saw for abuse of power. Following the same logic, the Antifederalists also opposed the creation of a peacetime army and sought to limit the nation’s military to the existing state-controlled militias. Their arguments were couched in terms used a century earlier in England against the Stuarts and in the American Revolutionary era against Parliament. The last two states to ratify followed much later. North Carolina approved on 21 November 1789 after the First Congress had already introduced a bill of rights. Rhode Island, finally accepted the federal system on 29 May 1790.
Article I, Section 10 provides that no state, without the consent of the Congress, shall keep troops or ships of war in time of peace, or engage in war unless actually invaded. Be sure to see the Second Amendment for more about this. The first 10 Amendments were ratified December 15, 1791, and form what is known as the Bill of Rights. The Second Amendment qualified Article I, Section 10 by ensuring that the federal government could not disarm the state militias. One part of the Bill of Rights, insisted on by the anti-federalists, states, “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.”
The Second Amendment reference was quite specific: “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.” Eighteenth-century Americans understood the precise meaning of those few words and tied them directly to the basic militia clause in Article I of the Constitution. Creating a “well regulated” militia – that is, one with adequate organization, weapons, and training, uniform across the nation – ensured that, when mobilized, the militiamen could effectively carry out combat functions. This point had been fully articulated during the drafting of Article I. Mason and other advocates of the Second Amendment knew that during the last years of the Revolution many militia units had virtually disintegrated because they lacked sufficient arms. The amendment reinforced the original militia clause by stating this fact explicitly.
The Militia Act of 08 May 1792 expanded federal policy and clarified the role of the militia. It required all able bodied men aged 18 to 45 to serve, to be armed, to be equipped at their own expense and to participate in annual musters. The 1792 act established the idea of organizing these militia forces into standard divisions, brigades, regiments, battalions and companies, as directed by the State legislatures. In those earlier days reliance for national defense was placed on the citizen soldier but without adequate provision being made for his training or equipment.
The Militia Act of 1792 attempted to give additional clarification to the requirements and expectations of the militia: “to enroll …every freeable-bodied white male citizen … and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service,except, that when called out on company days to exercise only, he may appearwithout a knapsack…”
Elbridge Gerry’s fear of militia neglect came to fruition within a generation at the outset of the War of 1812 when the various state militias performed in a manner ranging from ill-disciplined and near mutinous to well organized and heroic. Andrew Jackson’s victory over the British at New Orleans on January 8, 1815 confirmed what Americans wanted to believe, namely, that the nation could draw together a fighting force at the moment of need, not before, without elaborate and expensive pre-planning of a regular army and dependant upon the citizen soldier.
For the 111 years that the Militia Act of 1792 remained in effect, it defined the position of the militia in relation to the federal government. Concern over the militia’s new domestic role also led the States to reexamine their need for a well-equipped and trained militia, and between 1881 and 1892, every state revised the military code to provide for an organized force. Most changed the name of their militias to the National Guard, following New York’s example. The Dick Act of 1903 replaced the 1792 Militia Act and affirmed the National Guard as the Army’s primary organized reserve. The Dick Act, 1903 affirmed the National Guard as the primary organized reserve force. Between 1903 and the 1920′s, legislation was enacted that strengthened the Army National Guard as a component of the national defense force.
The US Supreme Court decided [5 to 4] June 26, 2008 in DISTRICT OF COLUMBIA, ET AL., PETITIONERS v. DICK ANTHONY HELLER that “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms … The Antifederalists feared that the Federal Government would disarm the people inorder to disable this citizens’ militia, enabling a politicized standingarmy or a select militia to rule. The response was to deny Congresspower to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved…”
Heller was wrongly decided. Writing in dissent, Justice Stevens said that “The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution…
“In 1934, Congress enacted the National Firearms Act,the first major federal firearms law. Sustaining an indictment under the Act, this Court held that, “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Miller, 307 U. S., at 178. The view of the Amendment we took in Miller — that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons — is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.
No new evidence has surfaced …. supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons. Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses.”