By Ryan McMaken
August 23, 2018
Why We Can’t Ignore the “Militia” Clause of the Second Amendment
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.
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.
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 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.”