The Swiss cantons owed their emancipation to their militia establishment—The English cities rendered themselves formidable to the Barons, by putting arms into the hands of their militia—and when the militia united with the Barons, they extorted Magna Charta from King John—In France we recently see the same salutary effects from arming the militia—In England, the militia has of late been neglected—the consequence is a standing army .... In a Republic every man ought to be a soldier, and be prepared to resist tyranny and usurpation, as well as invasion, and to prevent the greatest of all evils—a standing army.27
Another account of Jackson’s speech quoted him as opining “that the people would never be dissatisfied with bearing arms in their own defence; this right, he observed, was one of the dearest to a freeman.” He recalled “the history of the emancipation of the Swiss nation from tyrannical oppression” and “the exertions made lately by Ireland to secure that invaluable privilege of bearing arms in their own defence.”28 The latter referred to the fact that, during the American Revolution, Irish Protestants were authorized to arm themselves to defend against a French attack, which made them more powerful later in negotiations with Britian.29
Yet another account of Jackson’s speech attributed to him the words that ”the people of America would be highly displeased at being debarred the privilege of carrying arms.” He urged: “’tis our duty to prepare against contingencies, and to provide the means for every man to protect himself as well against tyranny and usurpation, as against assault and invasion.”30
These three accounts of Jackson’s remarks refer to “the people” as having “the privilege of carrying arms,” and as having a “right”—“one of the dearest to a freeman“—of “bearing arms in their own defence.” They aver that “every man” should be a soldier, and “be prepared to resist” and have “the means ... to protect himself” against, tyranny, usurpation, assault, and invasion. These comments suggest a broad understanding of the Second Amendment.
The debate turned to whether the federal government could be trusted with the power to provide, and hence not to provide, arms to the militia. Jeremiah Wadsworth of Connecticut opposed “the plan proposed of providing arms for the militia at the expence of the United States, and especially against giving the general government a power of disarming part of the militia, by ordering the arms and accoutrements by them lent, to be returned.”31 Representative Jackson also opposed the proposal:
by the constitution, the general government was only authorised to fix the manner of providing accoutrements, &c. and not to furnish them; which would be improper, as they would then have the power of disarming the militia. Every man in the country had his gun, and if provision was made to furnish the militia with arms, it would, he conceived, be an unequal provision merely to favour the city residents.32
James Madison spoke against the amendment, noting that “if the militia from the different states presented themselves completely equipped for the service of the United States, it would not be asked where they got their arms, which, without impropriety, could be furnished by the states.”33
Roger Sherman of Connecticut analyzed the militia clause in Article I, Section 8, of the Constitution in the same manner he had heard it explained in the Philadelphia convention of 1787:
He believed it to have been the intention of the Convention, who put this article into the constitution, that the United States were to be put to no expence about the militia, except when they were called forth into the actual service of the union.... That relates to arming and disciplining them, means nothing more than providing, by a general regulation, the nature and uniformity of the arms, which ought to be of one calibre.
Upon the whole, he thought there were so few free men in the United States incapable of procuring themselves a musquet, bayonet and cartouchbox, as to render any regulation by the general government respecting them improper. If the people were left to themselves, he was pretty certain the necessary warlike implements would be provided without inconvenience or complaint, whereas if they were furnished by Congress, the public arsenals would be speedily drained, & from the careless manner in which many persons are disposed to treat such public property, he apprehended they would be speedily lost or destroyed.34
Sherman’s recollection about the 1787 convention was accurate. In response to remarks by Sherman himself, Rufus King had explained about the Constitution’s militia clause 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.” Madison had added that “the ‘arming’ ... did not extend to furnishing arms.”35
Back to the 1790 debate, Representative Wadsworth warned that supporters of the federal arming proposal seemed to be suggesting that large segments of the population would be armed by the government, with the attendant dangers:
At first it appeared to be intended for the benefit of poor men who were unable to spare money enough to purchase a firelock: but the gentleman from Delaware (Mr. Vining) had mentioned apprentices and young men in their non-age: he would be glad to know whether there was a man within these walls, who wished to have so large a proportion of the community armed by the United States, and liable to be disarmed by the government, whenever it should be thought proper.36
Masters could be expected to furnish arms to their apprentices. As to other young men, “their parents would rather give them guns of their own, than let them take others from the U.S. which were liable to be taken away at the very moment they were most wanted.”
A vote was then taken, and Parker’s motion to arm the poor at federal expense failed.
Representative Fitzsimons moved to strike the words “provide himself” and amend the bill to read that every citizen “shall be provided” with arms.37 Congressman Jackson opposed the amendment:
He believed most of the citizens of America possessed and used guns. In Georgia and in the back country they were useful to procure food, and were to be met with in every House. He had no doubt but the people would supply themselves fully, without the interference of the Legislature ....38
Boudinot, Madison, and others also opposed the amendment, objecting that it “would leave it optional with the States, or individuals, whether the militia shall be armed or not.”39 Fitzsimons’ motion “was lost by a considerable majority.”40
Debate ensued about persons who may be exempted from militia exercises. Under the Constitution, Hugh Williamson of North Carolina noted, “Congress are to provide for arming and disciplining the militia; but who are the militia? Such men, he presumed, as are declared so to be by the laws of the particular States, and on this principle he was led to suppose that the militia ought to consist of the whole body of citizens without exception.”41
Regarding classes to be exempt from militia duty, Madison felt that members of Congress ”ought ever to bear a share of the burthens they lay on others, in order that their acts may not slide into an abuse of the power vested in them.”42 Jackson opined that anyone objecting to militia duty should pay an equivalent, for “bearing arms was one of the most important duties we owe to society. One great object men have in view, by forming themselves into a state of civil society, is to protect their persons and property; to afford this protection it is necessary ... that every one either give his personal assistance, or pay an equivalent for it.”43
As noted above, Jackson had previously offered remarks emphasizing the individual right of persons to bear arms against tyranny and assault. Roger Sherman now made comments equally significant about the meaning of the Second Amendment as follows:
[E]very power still remained in the people and the state governments, except what had been given up to the United States by the new constitution. The house was not about to relinquish to the state governments any part of its power; but merely to acknowledge a power, that remained in the state legislatures. He asked, if gentlemen imagined, that the state governments had gi
ven out of their hands the command of the militia, or the right of declaring who should bear arms? He conceived it to be the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack upon his liberty or property, by whomsoever made. The particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded.44
This is a significant statement about the right to bear arms as perceived by the Framers. While the states retained the power to declare “who should bear arms” in the militia, one of the “most essential rights” of “every citizen” is to bear arms and to resist attack on his liberty or property from any source. Like “private citizens,” the states too were entitled to be armed and to defend themselves.
Jackson reinforced Sherman’s sentiments with his further comment “that every citizen was not only entitled to carry arms, but also is duty bound to perfect himself in the use of them, and thus become capable of defending his country.” Moreover, its decentralization meant that “the militia of the United States can never be such an unwieldy machine ... except they should be all assembled together—a case never likely to happen.” There was no valid argument “that the whole body of the people ought not to be armed, and properly trained.”45
While bearing arms individually was a right and bearing arms in the militia was a duty, the latter may still entail voluntary participation. Fisher Ames of Massachusetts discussed “the several independent companies in Massachusetts, particularly that known by the name of the Ancient and Honourable Artillery .... This, with other independent companies, rendered essential services in the time of the insurrection in that state; and they prove, by their example, a stimulus to the militia—they have incurred great expences to equip themselves ....”46 The Ancient and Honorable Artillery Company still exists today.47
John Laurance of New York defined the militia as “every man in the states who is capable of performing military duty, though not actually enrolled in any particular body,” noting that “when the constitution was framed, some states were as yet unprovided with militia laws.” Accordingly, “the militia must mean all persons without exception, who are capable of bearing arms in defence of their country ....”48 He argued that if conscientious objectors were to be exempted, it must be by state law, not the federal enactment—the view that would prevail.49
The Militia Act slowly worked its way through both houses of Congress—unfortunately, no Senate debate was recorded—and was signed by President Washington on May 8, 1792.50 The act began by defining who constituted the militia:
That each and 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 (except as is herein after excepted) shall severally and respectively be enrolled in the militia by the captain or commanding officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this act.51
Only narrow classes were excused from militia duty. Exempted classes included the vice president (but not the president, who was the commander in chief of the militia when federalized), federal judicial and executive officers, members of Congress, customs officers, post officers, and certain classes essential to certain types of water transportation. The states could exempt other classes.52
The act provided that each militiaman must provide himself with arms, ammunition, and accouterments as follows:
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 ....53
There is no mistaking the act’s above language that “every citizen so enrolled ... shall ... provide himself with a good musket or firelock.” Over two centuries later, a revisionist history purported to quote the act as having read that “every citizen so enrolled, shall ... be constantly provided with a good musket or firelock,” and then asserted that “Congress took upon itself the responsibility of providing those guns.”54 Neither statement was true.
In his 1828 dictionary, Noah Webster—who had been a leading federalist pamphleteer (see Chapter 8)—defined “musket” as “a species of fire-arms used in war, and fired by means of a lighted match.” That ignition system was obsolete, but the phrase “in common speech, is yet applied to fusees or firelocks fired by a spring lock.”55 A “firelock” was defined as “a musket, or other gun, with a lock, which is discharged by striking fire with flint and steel.”56 A “fusee” was “a small neat musket or firelock.”57 The rifle was the most accurate arm, which Webster defined as “a gun about the usual length and size of a musket, the inside of whose barrel is rifled, that is, grooved, or formed with spiral channels.”58
The above provision required about ammunition that only the ball (bullet) fit the arm an individual militiaman possessed. But the act further mandated that “from and after five years from the passing of this act, all muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth-part of a pound.”59 A common bore for all muskets would make the ammunition interchangeable throughout the militia.
The act provided that “the commissioned officer shall severally be armed with a sword or hanger and espontoon” (a half pike),60 but that such officers in troops of horse must furnish themselves with the horse—at least fourteen and a half hands high—and “be armed with a sword and pair of pistols, the holsters of which to be covered with bearskin caps.” Dragoons must also be armed with a pair of pistols along with a saber.61
A militiaman’s arms and equipment enjoyed a privileged status as personal property: “every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.“62
The militia of each state, except when called into federal service, would serve under the commander-in-chief of the state—that is, the governor—who would appoint an adjutant general to see that the state militia was organized and effective. Militiamen, “during the time of their being under arms,” were subject to having their arms and equipment inspected to ensure compliance with the requirements, and officers of different corps in the state would report “the actual situation of their arms” and equipment to the adjutant general.63 Since inspection of arms took place only when the militiaman was on duty and extended only to the required arms, the act was not a precedent for a registration system in which authorities kept records on all arms owned by the citizens.
A unity of purpose and activity existed between the militia system and the keeping and bearing of arms for lawful purposes. New York politician and physician Samuel Latham Mitchill, in an address the year after passage of the Militia Act, noted that the militia “proceeds upon the principle, that they who are able to govern, are also capable of defending themselves. The keeping of arms, is therefore, not only not prohibited, but is positively provided for by law ....” “These weapons serve for the defence of the life and property of the individual against the violent or burglarious attacks of thieves, a description of persons happily very small among us.” Besides being ready to suppress insurrection and invasion, “the bearer, unfettered by oppressive game and forest laws, and without the restraint of a licence may amuse himself with hunting and fowling when he pleases. These are great privileges, ... and misery may be expected to follow with hasty strides any attempt to deprive you of them.”64
The Militia Act remained on the books for over a c
entury. After the Civil War, the term “white” was deleted from the reference to every “free able bodied white male citizen” so as to make the now-freed African Americans liable for militia service.65 The act itself, with its requirement that every male citizen provide himself with a firearm, was not repealed until 1903.66 But the new enactment continued to define the militia as “every able-bodied male citizen of the respective States,” although it divided it between the “organized militia” (National Guard) and the “Reserve Militia.”67 But that is another story.68
CHAPTER 15
Old Founders Never Die,
They Just Fade Away
HAVING ADOPTED the Constitution and Bill of Rights, the Founding generation proceeded to build the American republic. At different times and for different purposes, those who had been instrumental in bringing on the great experiment in government had occasion to comment on its fundamental principles. The following sets forth some of their later reflections that are pertinent to the Second Amendment.
When Thomas Jefferson was elected as president of the United States in 1801, students from the College of William and Mary celebrated with a glass of wine at the house of their acclaimed professor, Judge St. George Tucker.1 Tucker was already at work writing what would be the first and foremost treatise on the Constitution and Bill of Rights. Published in 1803, the work included the English jurist Blackstone’s Commentaries along with Tucker’s reflections on the American system.2
The Founders' Second Amendment Page 38