Critical History, The Constitutional and Legislative Record of the Second Amendment and “A well organized Militia”

For years I have been struck by the strange logic and, to be honest, self-serving rhetoric espoused by the indefatigable ideologues and activists who relentlessly promote the notion that the Second Amendment’s true intent was to ensure that the U.S. population was well armed in preparation for a future revolution against an oppressive government. 

They assert this while, at the same time, waxing eloquent and patriotically about the U.S. being the greatest country on earth whose Constitution is a shining light in a dark world.

Still, they want to have a free hand to arm themselves indiscriminately against a threat that they conceptually should acknowledge does not exist in a country established for the people and by the people. 

Their starting point:  insisting that the Constitution, namely Article 1, Section 8, enshrines the concept of a citizen’s militia of the people, armed and ready to resist tyranny.

However, Article 1, Section 8 specifically anticipates that the militia would be used to suppress just such an insurrection.  It was actually used for that purpose in 1794 when President Washington himself led the militias of several states to Western Pennsylvania to suppress the “Whiskey Rebellion”, a revolt of local farmers and distillers against the federal government’s imposition of a tax on spirits.

It seems that militia ideologues really haven’t read or understood the Constitution, studied subsequent history, or reached any honest and defensible conclusions.

To dig deeper and confirm the facts, we need to take a patient ramble through the relevant clauses of the 1789 Constitution, the 1792 (and 1795) militia laws and the 1903 National Guard legislation that brought the militia into our modern national security structure and institutions. 

Let’s start with the Constitution. 

Article 1 states The Congress shall have Power to undertake 17 actions, starting with “lay and collect taxes, provide for the common Defence and general Welfare ... raise and support Armies, to provide and maintain a Navy, and eventually, the two provisions addressing “militia” and finally, to make the laws “necessary and proper for carrying into Execution the foregoing Powers. 

The two militia provisions (15 and 16 in the list):

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

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, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

The Founding Fathers were quick to amend the Constitution in 1791 with the ten amendment Bill of Rights, which included our now-painful Second Amendment.  By an odd circumstance of history, the 27th and most recent Amendment, barring Congress from raising its own pay, was enacted in 1992, fully two centuries after it was first considered when it was included among the original twelve proposed amendments in the Bill of Rights.

The Founding Fathers were equally quick to pass legislation in 1792 (and 1795) to govern the functioning of state militias within the nascent national defense structure.  It makes fascinating reading and shows the primitive state of military preparations and equipment of the time.  It also confirms that the Second Amendment was written with the “well organized militia” as the focus of its operative clause related to keeping and bearing arms.

From the 1792 law (note the focus on free, able-bodied white male citizens): 

That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of 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. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, 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 appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and 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.

Impressive and compelling, requiring males from age 18 to 45 to maintain their weapons and 24 cartridges.  Its timing and close link to the second amendment implicitly confirms that the right to bear arms did not apply if you were over 45 years of age or under 18, then or in 2020 in the case of a seventeen year old that night in Kenosha.

Further historical context on the militia comes from comments by President Washington who said in 1794 to spur further refinement of the militia law the next year:

“The devising and establishing of a well of a well-regulated militia would be a genuine source of legislative honor and a perfect title to public gratitude.   I therefore entertain a hope that the present session will not pass without carrying to its full energy the power of organizing, arming and disciplining the militia; and thus providing, in the language of the Constitution, for calling them forth to execute the laws of the Union, suppress insurrections, and repel invasions.”

And let’s not forget that President Washington himself led the combined militia forces of several states to suppress the Whiskey Rebellion in western Pennsylvania that very same year (1794) making it clear for future generations of Americans that the Constitution did not contemplate allowing violent resistance to a democratic and constitutionally elected national government.

There followed a century of uneven performance, marred by the southern state militias forming the heart of the army of the Confederacy during the Civil War in defense of the states’ right to sustain and to extend slavery.

The shortcomings of the militia system prompted President Teddy Roosevelt in 1901 to pronounce:

“Our militia law is obsolete and totally worthless.    The organization and armament of the National Guard of the several States ****should be made identical with those provided for the regular forces.  The obligations and duties of the Guard in time of war should be carefully defined.”

The follow-on action: HR 11654 of 1903 to modernize what it called the 1792 militia law’s “musty provisions” by organizing all male citizens (dropping the 1792 characterization of “free white male citizens”) between the ages of 18 and 45 into either the “Organized Militias” as part of the newly established National Guard as an element of the national defense structure or, for the remaining, to be included in the roster of the “Enrolled Militia”.  The legislation specifically stated that the Guard would be supplying the necessary weaponry to the units created. No mention of individual weapons whatsoever.

Where does this history review leave us in 2022? 

Seems to me it leaves us with a clear mandate to correct the false narrative of the ever ready and heavily armed popular militia prepared to fight back against the expected oppression of their democratically elected government.

Seems to me that this history needs to be highlighted to the Supreme Court as it considers ruling in the case of New York Rifle and Pistol Association v Bruen where the NYRPA is petitioning for a relaxation of NY state law and regulation restricting concealed carry.

Seems to me that the Court needs to be challenged on its tenuous landmark decision of 2008 (District of Columbia v Heller) where Justice Scalia’s majority opinion essentially dismissed the Second Amendment’s link to a “well organized militia” as being of no real relevance to “shall no be infringed”.

Seems to me as well that it should give us the knowledge and energy to forge ahead with the effort to bring the Second Amendment into the modern world of the 21st Century, much as the 1903 National Guard law did for the 18th century militia. 

Both can coexist, the National Guard and a 21st century Second Amendment, and America’s hunters and sports shooters, and home defenders will find themselves in a much safer and congenial country and society.

History is meant to be studied, and learned from.  Thanks for your patience in reading through to the end of this blog, and the history it covered. 

I hope that you will be able to use this presentation to good effect in discussing the Second Amendment and its clear link to our devastating level of gun violence in our great country.