The reason was fundamental—as the federalists would argue, the Constitution delegated no powers that would authorize the new government to violate rights as they were traditionally understood. The antifederalists would respond that the Articles operated only on the states, but the proposed Constitution would operate on individuals, thereby requiring personal rights to be protected. But these arguments would be articulated in the future. At the Philadelphia convention itself, there was hardly any mention of a declaration of rights.
There was, however, considerable debate on the concept of the militia, given that it was part of the structure of government, which was all the proposed Constitution purported to be. The militia was initially contemplated in relation to governmental forms that would not ultimately be adopted. For instance, George Mason of Virginia envisioned that the office of president should consist of three persons rather than just one. A single leader had the advantages of unity and secrecy, yet monarchies had been defeated when they invaded republics. Republics without a single leader but with an armed populace had advantages too: “Every Husbandman will be quickly converted into a Soldier, when he knows & feels that he is to fight not in defence of the Rights of a particular Family, or a Prince; but for his own.... It is this which preserves the Freedom and Independence of the Swiss Cantons, in the midst of the most powerful Nations.” That also was the secret to the success of the Americans in the Revolution, Mason asserted.2
While it is unclear when Mason may have broached the above, the issue of the militia was squarely raised in reaction to a proposal that the national legislature be empowered to negate state laws. Elbridge Gerry of Massachusetts observed on June 8 : “that the proposed negative would extend to the regulations of the militia—a matter on which the existence of the state might depend. The national legislature, with such a power, may enslave the states.”3 The topic was dropped after the negative power was rejected.
George Mason, on August 18, proposed “a power to regulate the militia.”4 Reliance on the militia for the public defense would preclude a peacetime standing army. “Thirteen states will never concur in any one system, if the disciplining of the militia be left in their hands.”5 By regulating or standardizing the militia, the general government would assist the states in preserving their powers.
Mason proposed a power “to make laws for the regulation and discipline of the militia of the several states, reserving to the states the appointment of officers.”6 “He considered uniformity as necessary in the regulation of the militia, throughout the Union.”7 Oliver Ellsworth of Connecticut proposed that “the militia should have the same arms and exercise, and be under rules established by the general government when in actual service of the United States; and when states neglect to provide regulations for militia, it should be regulated and established by the legislature of the United States.”8 He explained: “The whole authority over the militia ought by no means to be taken away from the states, whose consequence would pine away to nothing after such a sacrifice of power.”9
John Dickinson of Delaware supported both Mason and Ellsworth. A most important matter was “that of the sword. His opinion was, that the states never would, nor ought to, give up all authority over the militia.”10 He proposed that the federal power extend to only part of the militia at any one time, “which, by rotation, would discipline the whole militia.”11 Mason then incorporated this idea of “a select militia” into his proposal.12 That term had a less innocent meaning in the mind of Ellsworth, who “considered the idea of a select militia as impracticable; and if it were not, it would be followed by a ruinous declension of the great body of the militia. The states would never submit to the same militia laws.”13
Mason’s proposal of a select militia was curious, for, as events would prove, he and others who would become antifederalists held that institution to be just a little less evil than a standing army. He may well have considered a select militia as the lesser of the two evils.
Roger Sherman of Connecticut opined that “the states might want their militia for defence against invasions and insurrections, and for enforcing obedience to their laws.”14 Mason agreed, adding to his motion an exception that the general power would not extend to “such part of the militia as might be required by the states for their own use.”15 Mason’s proposals were then referred to committee.
When reported back to the convention, the militia clause provided that Congress may “make laws for organising, arming, and disciplining the militia, and for governing such parts of them as may be employed in the service of the United States, reserving to the states, respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed.... “16 On August 23, the following debate ensued:
MR. SHERMAN moved to strike out the last member, “and authority of training,” &c. He thought it unnecessary. The states will have this authority, if not given up....
MR. [Rufus] KING [of Massachusetts], by way of explanation, said, that by organising, the committee meant, proportioning the officers and men—by arming, specifying the kind, size, and calibre of arms—and by disciplining, prescribing the manual exercise, evolutions, &c.
MR. SHERMAN withdrew his motion.
MR. GERRY This power in the United States, as explained, is making the states drill-sergeants. He had as lief let the citizens of Massachusetts be disarmed, as to take the command from the states, and subject them to the general legislature. It would be regarded as a system of despotism.
MR. [James] MADISON [of Virginia] observed, the “arming,” as explained, did not extend to furnishing arms; nor the term “disciplining,” to penalties, and courts martial for enforcing them.
MR. KING added to his former explanation, that arming meant not only to provide for uniformity of arms, but included the authority to regulate the modes of furnishing, either by the militia themselves, the state governments, or the national treasury; that laws for disciplining must involve penalties, and everything necessary for enforcing penalties.17
Thus, the power over the militia was intended to establish standards for exercises and for arms. While King’s final statement allowed for the furnishing of arms by the militia themselves or by the state or federal governments, the practice in every state was for each individual to furnish his own arms, a policy which the federal Militia Act of 1792 would adopt. The objective was to provide discipline for the self-armed populace, not to arm or disarm select groups.
The provision would be adopted substantially as proposed. The convention rejected a more comprehensive substitute for the second clause to the effect that Congress would “establish a uniformity of arms, exercise, and organisation for the militia.... ”18 Geopolitical considerations were at stake:
MR. [Jonathan] DAYTON [of New Jersey] was against so absolute a uniformity. In some states there ought to be a greater proportion of cavalry than in others. In some places, rifles would be more proper; in others, muskets, &c.19
Cavalry, of course, were armed with pistol and sword, and perhaps carbine. Rifles were long-range weapons used by frontiersmen and backwoodsmen in the South, while muskets were medium-range arms favored in New England.20 Uniform bore sizes among militiamen in a given locale would allow interchangeable ammunition, but differing terrain and habits of the people precluded uniform types of arms.
In response to Madison’s comment that the states were neglecting the militia, Luther Martin of Maryland replied that “the states would never give up the power over the militia; and that, if they were to do so, the militia would be less attended to by the general than by the state governments.”21 After Gerry warned that granting Congress powers inconsistent with the existence of the states would lead to civil war, Madison rejoined that “as the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual provision for a good militia.”22 The militia clause would protect the power of the states to maintain militias and to retain their sovereignty by precluding a need for standi
ng armies.
As finally drafted, the federal power over the militia and the division of this power with the states would be inserted with the other congressional powers in Article I, Section 8, delegating power to Congress as follows:
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organising, 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....23
Congress also had power “To declare War” and “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years....”24 Further, “the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States....”25 Finally, “No State shall, without the Consent of Congress,... keep Troops, or Ships of War in time of Peace,... or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”26
The division between the federal government and the states regarding war, standing armies, and militia was thus well drawn. Nothing in the Bill of Rights that would be adopted later, including the Second Amendment, would change the above provisions.
On September 14, Mason moved to insert before the militia clause the preamble “and that the liberties of the people may be better secured against the danger of standing armies in time of peace.”27 Draftsman of the Virginia Declaration of Rights of 1776, Mason was the leading author of such declaratory clauses. Madison supported the motion, reasoning that “as armies in time of peace are allowed, on all hands, to be an evil, it is well to discountenance them by the Constitution....”28 Gouverneur Morris opposed it, “as setting a dishonourable mark of distinction on the military class of citizens.”29 The convention did not favor abstract principles of political philosophy, and the proposal failed.
As finally drafted, the Constitution did mention a few rights. Similar to the Articles, it declared: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”30 Both Congress and the states were forbidden to pass any bill of attainder,31 and “the Trial of all Crimes... shall be by Jury....”32 But the proposal contained no formal bill of rights.
Indeed, the desirability of a declaration of rights was only barely mentioned. On September 12, with the convention virtually over, George Mason “wished the plan had been prefaced with a bill of rights.... It would give great quiet to the people, and, with the aid of the state declarations, a bill might be prepared in a few hours.”33 Roger Sherman thought the state declarations sufficed and that Congress could be trusted.34 Mason pointed out that “the laws of the United States are to be paramount to state bills of rights.”35 The convention narrowly killed the motion for a committee to prepare a bill of rights.36
Attempts to declare various rights also failed. Charles Pinckney of South Carolina and Elbridge Gerry offered a declaration “that the liberty of the press should be inviolably observed.”37 Again, Roger Sherman preempted that proposal with the remark, “It is unnecessary. The power of Congress does not extend to the press.”38 This opinion held sway, and the convention proposed the Constitution without a bill of rights.
Benjamin Franklin, for one, was under no illusions. On the last day of the convention, he stated that “this is likely to be well administered for a course of years, and can only end in despotism, as other forms have done before it....”39 In a few minutes, the Constitution was signed by all of the delegates present, except for three who believed the convention had exceeded its authority—Mason, Gerry, and Edmund Randolph of Virginia. As the last members were signing, Franklin looked at the painting of a rising sun behind the president’s chair and observed to those sitting around him: “I have often and often, in the course of the session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the president, without being able to tell whether it was rising or setting; but now, at length, I have the happiness to know that it is a rising, not a setting sun.”40
George Mason was not so sure and was already drafting objections to the Constitution. He sent copies to Virginia’s political leaders, including to George Washington on October 7, and before long the objections were widely published in the newspapers. Mason’s tract began: “There is no Declaration of Rights; and the laws of the general Government being paramount to the Laws & Constitutions of the several States, the Declarations of Rights in the separate States are no Security.”41
Pointing to Congress’ power to pass all laws that were “necessary and proper” to implement its enumerated powers, Mason argued that the federal legislature could “constitute new Crimes, inflict unusual & severe Punishments, and extend their power as far as they shall think proper; so that the State Legislatures have no Security for the Powers now presumed to remain to them; or the People for their Rights.”42 Mason’s word choice was elementary: The federal and state legislatures had “powers” while the people had “rights” that were not secured by a positive declaration.
Two days before the Philadelphia convention ended, delegate Thomas Fitzsimons of Pennsylvania asked Noah Webster to write in support of the proposed Constitution.43 Webster, who had penned political essays since the Revolution, lived in Philadelphia while the convention met, conversing with Franklin, Washington, Madison, and other delegates.44 Webster responded on October 10 with An Examination of the Leading Principles of the Federal Constitution, the first pro-Constitution pamphlet.45 He explained why the armed populace would remain sovereign under a constitution with an army but no bill of rights:
Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command; for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.46
Hamilton and Madison would later repeat the above argument in The Federalist Papers.47 Like those writers, Webster contended that rights to arms and speech need not be spelled out. If a bill of rights was necessary, he sarcastically wrote in the American Magazine, then it should include a provision “that Congress shall never restrain any inhabitant of America from eating and drinking, at seasonable times, or prevent his lying on his right side, in a long winter’s night, or even on his back when he is fatigued by lying on his right.”48
Tench Coxe, another rising federalist star, wrote a series called “An American Citizen,” which has been characterized as the first major defense of the Constitution.49 In Number IV of the series, printed as a broadside on October 21 with reprints of other federalist essays,50 Coxe wrote that, should tyranny threaten, the “friends to liberty... using those arms which Providence has put into their hands, will make a solemn appeal to ‘the power above.”’51 He added: “The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon the regular troops, and will generally be sufficient to over-awe them....”52
Coxe sent copies to Madison, noting that the essay was written at the request of James Wilson, Dr. Benjamin Rush, and others “to shew the general advantages & obviate some of the Objections ro th
e System.” Coxe hoped that Madison and Hamilton “may make any use of them, which you think will serve the cause.”53 Madison responded that Hamilton “will make the best use of them,” adding that the essay “is a valuable continuation, and I shall be equally desirous of seeing it in the Virginia Gazettes; and indeed in those of every State.”54
Already antifederalists were criticizing the lack of a bill of rights. Samuel Bryan, writing as “Centinel I” in the October 5 issue of the Independent Gazetteer, declared it “worthy of remark, that there is no declaration of personal rights premised in most free constitutions....”55 Noting rights guaranteed in the Pennsylvania constitution, he asked “how long those rights will appertain to you, you yourselves are called upon to say, whether your houses shall continue to be your castles....”56
However, James Wilson—the first delegate to the Philadelphia convention to deliver a public speech defending the proposed Constitution—both defended a standing army and denied the need for a bill of rights in that speech.57 In response, “A Democratic Federalist,” writing in the October 17 issue of the Pennsylvania Herald, called a bill of rights necessary to secure “our natural rights.”58 He characterized the standing army as “that great support of tyrants,” recalled the militias’ exploits at Lexington and Bunker Hill and against Burgoyne, and asked, “is not a well regulated militia sufficient for every purpose of internal defence?” As to Wilson’s argument that no nation in the world lacked a standing army, he adduced:
the example of Switzerland, which, like us, is a republic, whose thirteen cantons, like our thirteen States, are under a federal government, and which besides is surrounded by the most powerful nations in Europe, all jealous of its liberty and prosperity: And yet that nation has preserved its freedom for many ages, with the sole help of a militia, and has never been known to have a standing army, except when in actual war.—Why should we not follow so glorious an example, and are we less able to defend our liberty without an army, than that brave but small nation, which with its militia alone has hitherto defied all Europe?59
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