A Well-Regulated Militia: The Meaning of the Second Amendment According
to the Founding Fathers
In 1965 Irving Brant wrote:
The Second Amendment, popularly misconstrued, comes to life chiefly on
the parade floats of rifle associations and in the propaganda of
mail-order houses selling pistols to teenage gangsters: "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." As
the wording reveals, this article relates entirely to the militia-a fact
that was made even clearer by a clause dropped from [James] Madison’s
original wording: "but no person religiously scrupulous of bearing arms
should be compelled to render military service in person." It was made
clearest of all in the congressional debate on the amendment. Why was a
militia necessary to "the security of a free state?" Elbridge Gerry
asked and answered that question: "What, sir, is the use of a militia?
It is to prevent the establishment of a standing army, the bane of
liberty." Thus, the purpose of the Second Amendment was to forbid
Congress to prohibit the maintenance of a state militia. By its nature,
that amendment cannot be transformed into a personal right to bear arms,
enforceable by federal compulsion upon the states. 1.
The meaning of the Second Amendment of the United States Constitution is
the subject of more debate than that of any other article in that
document. One side contends, as did Brant, that it protects a
collective right of the states to arm militias, while others insist that
it protects an individual right to keep and bear arms. Those in the
collective rights camp seize on the words "well-regulated militia," and
"security of a free state." Those on the side of individual rights
point to the organization of the Constitution: the Bill of
Rights--wherein the Second Amendment sits among individual
rights--protects the rights of the individual.
Individual rights advocates also insist that the second clause of the
Second Amendment states that to keep and bear arms is "a right of the
people." They interpret that those people are the same people spoken of
in the First, Fourth, Ninth and Tenth Amendments. They argue that the
founders intended the militia to prevent the formation of a standing
army, and thereby prevent oppressive and tyrannical actions of
government. In this they agree with Elbridge Gerry, and disagree with
Those from the individual rights "parade float" recognize that Mr. Brant
conveniently omitted large portions of Elbridge Gerry’s speech in
Congress to suit his own purposes of contextual legerdemain. Mr. Brant
omitted, in fact, the first paragraph and most of the paragraph from
which he quoted. Elbridge Gerry’s full statement from the congressional
debate to ratify amendments bears repeating.
This declaration of rights, I take it, is intended to secure the people
against the mal-administration of the Government; if we could suppose
that, in all cases, the rights of the people would be attended to, the
occasion for guards of this kind would be removed. Now I am
apprehensive, sir, that this clause would give an opportunity to the
people in power to destroy the constitution itself. They can declare
who are religiously scrupulous, and prevent them from bearing arms.
What, sir, is the use of a militia? It is to prevent the establishment
of a standing army, the bane of liberty. Now, it must be evident, that,
under this provision, together with their other powers, Congress could
take such measures with respect to a militia, as to make a standing army
necessary. Whenever Governments mean to invade the rights and liberties
of the people, they always attempt to destroy the militia, in order to
raise an army upon their ruins. This was actually done by Great Britain
at the commencement of the late revolution. They used every means in
their power to prevent the establishment of an effective militia to the
eastward. The Assembly of Massachusetts, seeing the rapid progress that
administration were making to divest them of their inherent privileges,
endeavored to counteract them by the organization of the militia; but
they were always defeated by the influence of the Crown. 2.
Elbridge Gerry was well aquainted with the formation and regulation of
militias. When the Revolutionary War began in Massachusetts at
Lexington and Concord he was a member of the Committee of Supplies. 3.
This passage does not indicate that Elbridge Gerry was opposed to people
bearing private arms. His statement reveals that he was opposed to the
people being disarmed for religious reasons, as they had been in England
under both the Stuart Kings and Oliver Cromwell. Gerry stated under an
interrogatory that it was better to alter the part of the amendment
which bore any reference to religion rather than risk giving government,
"discretionary power to exclude those from militia duty who have
religious scruples, we may as well make no provision on this head." 4.
In it’s final form, after much debate, Congress dropped that clause
Irving Brant’s argument that Elbridge Gerry was dissatisfied with the
language of the Second Amendment during congressional debates is not
reason in itself to deny that it protects an individual right. Elbridge
Gerry also had objections to the wording of another part of the Bill of
Rights. Madison proposed an amendment which stated in part, "That
Government is instituted and ought to be exercised for the benefit of
the people;. . ." 5. Mr. Gerry objected to those words because as a
general statement it is inaccurate; it does not describe all
governments. 6. Using Mr. Brant’s logic American government is not
instituted for the benefit of the people, instead all rights descend
from government and are enjoyed by it’s grace, and at its whim. That
describes all rights as collective based upon the organization of the
original form. Under those conditions our rights would not be rights at
Mr. Brant’s contention that the Second Amendment grants the right to the
states to maintain their militias is likewise erroneous. In the debate
that followed Elbridge Gerry’s speech members sought ways to write the
amendment so that the religious scruples clause could remain without the
right to keep and bear arms being in danger of government intrusion.
Congressman Roger Sherman, who tended toward economy of words, said that
it was not necessary for this clause to appear in the amendment since
the states would have command of the militias unless called into
national service. The states, he believed, would protect the religious
liberty of conscientious objectors. 7. Command of the militias was not
granted to the states by the Second Amendment, still under discussion
and yet to be ratified. The congressman spoke in reference to the body
of the Constitution then in existence.
Madison’s speech in introducing amendments reveals his purpose, and
demonstrates that the Bill of Rights specifies particular individual
rights. In proposing the amendments to Congress, James Madison said
that some people objected to the Constitution because it:
. . .did not contain effectual provisions against encroachments on
particular rights, and those safeguards which they have long accustomed
to have interposed between them and the magistrate who exercises the
sovereign power; nor ought we to consider them safe, while a great
number of our fellow citizens think these securities necessary. 8.
The Anti-Federalists insisted upon a Bill of Rights to protect rights
long enjoyed from violation by the proposed Federal government. Madison
was not talking about an arrangement between the states and federal
government when he spoke of protection from "encroachments on particular
rights," "by the sovereign power." He referred to the arrangement
between the people and the states. The Federal government did not exist
before the states ratified the Constitution. There was therefore no
tradition of safeguards between the states and Federal government upon
which to encroach. The government of the Confederation does not fit
here either because it had no power to impose anything upon the states.
Madison can be talking of nothing other than individual rights in
introducing the Bill of Rights to the Congress.
Command of the militia is discussed in Article One Section Eight of the
Constitution, which indicates that Congress may call out the militia.
In the Virginia state convention to ratify the Constitution Mr. Clay
(there were two, the record does not reveal which) objected to granting
this power to Congress. James Madison, who later authored the Second
Amendment, stated that those who wrote this clause inserted it as
protection from insurrections and invasions and "the people ought
unquestionably to be employed, to suppress and repel them, rather than a
standing army." 9. Madison, answering an objection from George Mason,
said, "I cannot conceive that this Constitution, by giving the general
government the power of arming the militia, takes it away from the state
governments." 10. By the time Congress convened to adopt amendments the
matter of state versus federal control of the militia had been settled
by state ratification of the document. Throughout those debates only
the command of the militia was a matter of discussion, whether the
people had the right to be armed was not.
Ratification of the Constitution met the greatest opposition in
Massachusetts and Virginia. The most extensive debate in both states
was over Article One Section Eight. In Massachusetts the delegates
argued over federal command of the militia because the power to tax is
the power to control through the use of the military. 11. This is not
surprising since the American Revolution began in Massachusetts over
issues of taxation. In Virginia there was some argument over taxation
and the power to build a standing army. 12. Mostly though the argument
over command of the militia was an ideological one, not over taxes, but
over security. Still not convinced that Federal command was not a
threat of the establishment of a standing army, and doubting the
feasibility of Madison’s plan of dual command of the militia by the
state and federal governments, Patrick Henry asked this question. "May
we not discipline and arm them, as well as Congress, if the power be
concurrent?" He said that it would be, "at a very great cost, we shall
be doubly armed. The great object is, that every man be armed. But can
the people afford to pay for double sets of arms, &c.? Every one who is
able may have a gun." 13.
Historian Richard Frothingham explained that of the events leading up to
the American Revolution Americans resisted the acts of Parliament to
subdue them. Parliament issued the Stamp Act, then the Tea Tax. 14.
Inhabitants of Boston dumped the tea into Boston Harbor, so Parliament
issued the Boston Port Bill closing the port, garrisoned large numbers
of troops on the Common, and instituted the Regulating Act which revoked
the Massachusetts charter. The colonists had grown accustomed to
self-governance, and this last bill took from them the freedom of
assembly and altered their court system. 15.
Lord Chatham [a member of Parliament] wrote:
It is a mere verbiage, a most puerile mockery. Everything but justice
will prove vain to men like the Americans, with principles of right in
their minds and hearts, and with arms in their hands to assert those
Benjamin Franklin was abroad in England on behalf of the American
colonies to reconcile with the Crown. Frothingham tells us that he
accordingly, by his friend Lord Howe, sent the following declaration, to
be delivered to Lord North.
"The people of Massachusetts must suffer all the hazards and mischiefs
of war, rather than admit the alteration of their charter and laws by
Parliament. They that can give up essential liberty to obtain a little
temporary safety deserve neither liberty nor safety." These were the
last words which the illustrious American, on leaving England, addressed
to the obsequious instrument of arbitrary power. 17.
Thus the chain of events resulting in the Battle of Lexington and
Concord and culminating in the American Revolution became a struggle for
sovereignty, which according to Frothingham, Ezra Stiles called, "a
Runnymede in America." 18. Quoting James Wilson, Frothingham tells us
that a search for that sovereignty was, "to trace the dread and
redoubtable sovereign to his ultimate source, he was found, as he ought
to have been found, in the free and independent man." 19.
Every constitution in English and American history has established the
sovereign and outlined basic rights of the people. Frothingham’s
reference to Runnymede is a reference to Magna Charta. That document
acknowledged the king as sovereign with rights to the nobles. The
United States Constitution recognizes the people as sovereign with some
powers granted to government; but the people, as indicated by the Tenth
Amendment, retain all rights unless specifically granted to government.
In his three volume work, A Defence of the Constitutions of the United
States of America John Adams wrote that, "The militia and sovereignty
are inseparable." 20. Adams offered a critique of an essay by Marchant
Nedham and quoted him with approval of his general ideas.
That the people be continually trained up in the exercise of arms, and
the militia lodged only in the people’s hands, or that part of them
which are most firm to the interest of liberty, that so the power may
rest fully in the disposition of their supreme assemblies. 21.
Nedham believed that to retain sovereignty the people must retain the
arms. Quoting Aristotle, Nedham wrote,
As Aristotle tells us, in his fourth book of Politics, the Grecian
states ever had special care to place the use and exercise of arms in
the people, because the commonwealth is theirs who hold the arms: The
sword and sovereignty ever walk hand in hand together. 22.
Adams agreed, but indicated that when the Roman Senate lost sovereignty
and the people gained it, militia duty became a burden and they
established a standing army. Adams pointed out, while making a case for
a republic rather than a democracy, that Julius Caesar used that army to
establish himself as a dictator, and the people lost their sovereignty.
Caesar knew the people now to be sovereign, without controul of the
senate, and that he had the confidence both of them and his army, and
cast the die, and erected "praetorian bands," instead of a public
militia; . . . 23.
In his appeal for a republic rather than a democracy Adams the
Federalist insisted that the militia should be under command of the
executive branch of government, and that it should be well ordered and
It must be a sacred maxim, that the militia obey the executive power,
which represents the whole people in the execution of the laws. To
suppose arms in the hands of citizens, to be used at individual
discretion, except in private self-defence, or by partial orders of
towns, counties, or districts of a state, is to demolish every
constitution, and lay the laws prostrate, so that liberty can be enjoyed
by no man-it is a dissolution of the government." 24.
It is important to note that Adams believed every man had the right to
use arms in self-defense, but he did not believe in lawlessness such as
Shay’s Rebellion, which began as a dispute between debtors and
Richard Henry wrote along the same lines as John Adams:
. . .then the federal head may prescribe a general uniform plan on which
the respective states shall form and train the militia, appoint their
officers and solely manage them, except when called into the service of
the union, and when called into that service, they may be commanded and
governed by the union. This arrangement combines energy and safety in
it; it places the sword in the hands of the solid interest of the
community, and not in the hands of men destitute of property, of
principle, or of attachment to the society and government, who often
form the select corps of peace or ordinary establishments: by it, the
militia are the people, . . . 25.
Here Henry used the pronoun are, not the collective is when referring to
the militia. George Mason, using the pronouns who are and they when he
asked, "Who are the militia?" They now consist of the whole people,
except a few public officers." 26. He did not ask, "What is the
militia. The emphasis in the speech on certain words reveals a state of
mind about the militia.
The founders did not regard the militia as a caste or group, but as the
"whole people." Mason further stipulated that he feared a change in the
nature of the militia.
But I cannot say who will be the militia of the future day. If that
paper on the table gets no alteration, the militia of the future day may
not consist of all classes, high and low, and rich and poor; but they
may be confined to the lower and middle classes of the people, granting
exclusion to the higher classes of the people. Under the present
government, all ranks of people are subject to militia duty. 27.
He said that under the proposed constitution, ". . .we cannot say how
long all classes of people will be included in the militia." 28. In
making this statement Mason was not necessarily in agreement with Lee
referring to Article One Section Eight. ". . . it places the sword in
the hands of the solid interest of the community, and not in the hands
of men destitute of property. . . ." (quoted above) Mason wanted to
ensure that the militia would remain all the people, for he believed
that only all the people being armed could prevent the establishment of
a standing army. Some of the founders disagreed on the issue of
empowering the proposed federal government to call forth the militia.
They all agreed however that the militia is the best way to prevent the
formation of a standing army, and that the militia is by nature composed
of all the people.
Lee echoed the fears of the other founders that standing armies might be
used to oppress the people, and that the militia might become or cede
power to a standing army. The greatest protection against this
potential oppression, according to Lee, is to have the people formed
into the militia. By putting the arms in the hands of the people rather
than a standing army, and by drilling and training them, government
could not possibly act tyrannically. On the other hand, a special corps
of militia is just as dangerous to liberty as a standing army.
These corps [a select militia], not much unlike regular troops, will
ever produce an inattention to the general militia; and the consequence
has ever been, and always must be, that the substantial men, having
families and property, will generally be without arms, without knowing
the use of them, and defenceless; whereas, to preserve liberty, it is
essential that the whole body of the people always possess arms, and be
taught alike, especially when young, how to use them;. . . . 29.
In discussing the militia, Lee listed the regulation of the militia
among civil rights, which would later be included in the Bill of
Rights. He listed rights such as the freedom of religious observance,
rights of property, trial by jury, freedom from unreasonable search and
seizure, the right not to be compelled to act as a witness against
accused, right of assembly, right of redress of grievances, and freedom
from having to quarter soldiers in private homes. Lee included the
militia as a civil right.
The militia ought always to be armed and disciplined, and the usual
defence of the country-The supreme power is in the people, and power
delegated ought to return to them at stated periods, and frequently. 30.
He listed this arrangement of the militia as a civil right. According
to Richard Henry Lee such a condition of the militia is the right of the
people. George Nicholas was in agreement when he said, during the
debate, over command of the militia, "It’s [the proposed government]
greatest recommendation, with me, is putting the power in the hands of
the people." 31.
If the only purpose of keeping and bearing arms were for military
service that would be a duty, not a right. The soldier does not bear
arms because of rights; he bears them because of orders. The duty
existed nevertheless, according to long tradition and the plan of the
founders. The article under debate by them as regarding ratification,
Article One Section Eight, provides that Congress is thus empowered to
call out the militia.
We can better understand the reasons for providing for a "well-regulated
militia" if we understand why the founders felt the federal government
needed to provide for one. The states had always commanded the
militias, but the militias had made a poor showing during the
Revolution, prompting the Continental Congress to direct resources to
the Army. 32.
When Congress invested George Washington in December, 1776 with broad
powers as Commander in Chief of the Continental Army he wrote a letter
to reassure them that he would not abuse the trust of that body by
setting himself up as a dictator. 33. After appeasing Congress as to
his loyalty the general wrote in part:
But my feelings as an officer and a Man, have been such as to force me
to say that no person ever had a greater choice of difficulties to be
contended with than I have; it is needless to say that short
Inlistments, and a mistaken dependence upon Militia, have been the
Origin of all our Misfortunes and the great accumulation of our debt.
Conditions must not have improved over the next few years of the
Revolution because in October of 1780 Washington wrote a letter to
Thomas Jefferson telling him nearly the same thing. Washington wrote
that his opinion was that the war continued for as long as it did, and
the problems the Americans encountered, "are chiefly to be attributed to
temporary inlistments…" When the militia was called into service they
spent so much time in transit that they didn't get to fight much. The
nature of the militia, being what it was a citizen force and temporary,
they were of limited use to the Continental Army. Washington continued:
I solemnly declare I never was a witness to a single instance, that can
countenance an opinion of Militia or raw Troops being fit for the real
business of fighting. I have found them useful as light Parties to
skirmish in the woods, but incapable of making or sustaining a serious
attack. . . .The late battle of Camden is a melancholly comment upon
this doctrine. The Militia fled at the first fire, and left the
Continental Troops surrounded on every side, and overpowered by numbers
to combat for safety instead of victory. 35.
The problem was a matter of training. The general did not only
criticize the militia, he included untrained or "raw troops" in his
assessment. He wrote, "Let the states, then, in providing new levies
abandon temporary expedients, and substitute something durable,
systematic, and substantial." 36.
That the militia fled the field during battle is not surprising, as they
were not trained to fight in ranks. General Washington acknowledges
their usefulness in guerilla warfare, but since they had such short
enlistments there was no time to train in marching and military drill.
It requires great courage and discipline to stand in formation as a
stationary target for the enemy. It is much more desirable to fire from
behind a tree or a rock as the militia did at Concord Bridge. It is
little wonder then that when the men who invented this country wrote the
Second Amendment they inserted that clause about a "well regulated
militia." They still had memories of occurrences like that described by
Gun control advocates claim that the National Guard is a modern day
militia, but the members of the National Guard do not supply their own
weapons, as did the militia. 37. In the debates in the Virginia State
legislature to ratify the Constitution, George Mason indicated that he
opposed the Federal constitution because it provided for federal control
of the militia and with that the militia might be marched out of state
for any purpose. 38. The National Guard, under those provisions, is
more like a standing army, or what Lee described as a select militia,
than it is a general militia.
Article thirteen of the Virginia Declaration of Rights communicates the
apprehension that the founders had of standing armies. They regarded
standing armies as an extension of the power of a central government
that is often used to control a populace, and this article was intended
to prevent tyrannical government from controlling the people. The
Virginians took the police and military power and put it in the hands of
the people (a well-regulated militia, composed of the body of the
people) so that government could not oppress them.
That a well-regulated militia, composed of the body of the people,
trained to arms, is the proper, natural, and safe defence of a free
State; that standing armies, in time of peace, should be avoided as
dangerous to liberty; and that, in all cases, the military should be
under strict subordination to, and governed by, the civil power. 39.
"Well-regulated" obviously means well trained for that is the next
clause, "trained to arms." "Well regulated" also means well disciplined
as evidenced in a letter written by John Harvie to Thomas Jefferson
October 18, 1777. When Harvie learned of drunkenness among the soldiers
of the militia at Germantown he wrote to Jefferson that, "a
well-regulated militia may be our salvation and officers who are not
attentive to their duty ought to be broke like glass." 40.
The Virginia Declaration of Rights written in 1776, and Harvie's letter
written in 1777, demonstrate the meaning of the exact language, "a well
regulated militia," used in the Second Amendment to preface the right of
the people to keep and bear arms. The Second Amendment reads thus, "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."
When compared to the examples given above the meaning of the words
"well-regulated" and "militia" are easier to understand.
Historians regard The Virginia Declaration of Rights as the model for
the Bill of Rights of the United States Constitution. Article Thirteen
of that Declaration explains that "the body of the people" are the
militia. With this knowledge we can easily discern that the Second
Amendment guarantees the right of the people to keep order in their own
society, to fight a foreign enemy, to protect themselves from assaults,
and to protect themselves from a tyrannical government. This last part,
protection from tyrannical government, is demonstrated by the clause
advocating the arming of the people as a protection against standing
armies. It is a right of the people as explained in Article Thirteen of
the Virginia Declaration of Rights and the Second Amendment of the
Constitution of the United States.
Gun control advocates claim that the Second Amendment is a collective,
or a states right, not an individual right. They claim that it
guarantees the states the right to arm independently of the federal
government. The language and history of the Second Amendment does not
bear this out. The language has been discussed in the paragraphs above.
The history of the exact phrase, "a well regulated militia" predates the
federal government by at least thirteen years and the Second Amendment
by sixteen years. The phrase did not originate with the Second
Amendment, and cannot mean what gun control advocates claim it means
because in 1776 no federal government existed, nor was it conceived in
the minds of the founders. The claim the Second Amendment indicates the
right of the states to arm and keep militias does not stand up to
scrutiny. Article thirteen of the Virginia Bill of Rights says nearly
the same thing, and that is part of the Virginia State Constitution of
1776. Surely a state does not have to protect its own rights from
violation of itself.
In the Virginia state legislature during the debates over ratification
of the Constitution John Marshall, a federalist, said, "The state
governments did not derive their powers from the general government; but
each government derived its powers from the people, and each was to act
according to the powers given it." Of powers he said, "The state
legislatures had power to command and govern their militia before, and
have it still, undeniably, unless there be something in this
Constitution that takes it away." 41.
The Federalists considered that the problem of unqualified militia
needed a national standard of training. Article One Section Eight of
the proposed Constitution provided that standard. Part of the purpose
of the eighth section is, "To provide for organizing, arming, and
disciplining, the Militia, . . ." Patrick Henry registered his
complaint to this section. In the Virginia debates over ratification,
speaking to Madison he said, "Notwithstanding this clear, unequivocal
relinquishment of the power of controlling the militia, you say the
states retain it, for the very purposes given to Congress. Is it fair
to say that you give the power of arming the militia, and at the same
time to say that you reserve it?" Madison responded that calling forth
the militia would be a concurrent power of the state and Federal
The clause of Article One Section Eight pertaining to the militia reads
that Congress is empowered:
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; . . . 43.
Nearly eleven months earlier at the federal convention, the matter under
discussion in the Virginia assembly had already been addressed. Rufus
King explained that in the article specifications by Congress such as
"organizing," pertained to prescribed company size, "arming," meant
uniform caliber and type of firearms, "disciplining," meant "the manual
exercise [manual of arms], evolutions, &c." James Madison agreed and
stated explicitly, "that ‘arming,’ as explained, did not extend to
furnishing arms; nor the term ‘disciplining,’ to penalties, and courts
martial for enforcing them." 44. The states, therefore, surrendered no
power over their militia except that Congress might call them into
One of the first things Congress did when it convened in 1792 was to
issue an act to establish a uniform militia so that when the militia was
called out it was prepared to fight effectively. This act described who
was to be enlisted in the militia, every able bodied man from ages
eighteen to forty-five, how they would be trained, how often they would
train, how they would be formed into companies and brigades, and how
they would be armed and accoutered. It reads that members of the
militia, according to the plan of the founders, took their privately
owned arms, packs, and ammunition to musters.
. . .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. . . . 45.
While not designated as militia type weapons by the Militia Act of 1792,
General Gage (British) in 1775 recognized the military value of pistols
and other guns. During the British garrison of Boston, and the
subsequent American siege of that town after the battles of Lexington
and Concord, General Gage allowed Bostonians to evacuate. The
inhabitants had to lodge their weapons with the selectmen who marked
their names on them for return later so the insurgent American forces
could not be supplied with weapons. "On the 27th of April the people
delivered to the selectmen 1778 fire-arms, 634 pistols, 973 bayonets,
and 38 blunderbusses; . . ." General Gage did not intend to permanently
disarm the people, even in the midst of battle for the weapons were to
be returned, but he recognized the value to his enemy of being supplied
with arms by refugees of war. 46.
While the Militia Act of 1792 calls for the organization and compelled
enrollment of citizens in the militia for the security of the United
States the enrollment and training was a duty, not the bearing of arms
which was specified by the Second Amendment as a right. The Second
Amendment predates the Militia Act. The entire Bill of Rights were
ratified December 15, 1791 by the First Congress. The Militia Act became
effective May 8, 1792 by the Second Congress, and fulfilled the powers
of Congress to call out the militia as provided in Article One Section
Eight, but left command to the states under ordinary circumstances.
In a debate on an internet discussion board a gun control advocate
suggested that militia duty in the eighteenth and nineteenth centuries
was like jury duty in the twentieth century. That description is very
accurate in that militia duty was compelled duty which could not be
refused, and was a rite (and a right) of citizenship. What that person
failed to recognize though is that her argument supports the position of
individual rights rather than the position of gun control. Jury duty is
a duty that cannot be refused, but service on a jury does not abrogate
the individual rights to a jury trial, as a defendant or litigant, under
the Sixth and Seventh Amendments. 47.
The militia then, according to the founders, must prevent the
establishment of a standing army. This protects the rights of the
people because it is composed of the people. Richard Henry Lee wrote
that the Constitution must strengthen the militia.
First, the Constitution ought to secure a genuine and guard against a
select militia, by providing that the militia shall always be kept well
organized, armed, and disciplined, and include, according to the past
and general usage of the states, all men capable of bearing arms; and
that all regulations tending to render this general militia useless and
defenceless, by establishing select corps of militia, or distinct bodies
of military men, not having permanent interests and attachments in the
community to be avoided. 48.
Lee’s statement can be summarized in twenty-seven words. "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."
1. Irving Brant, The Bill of Rights: It’s Origin and Meaning
(Indianapolis: The Bobbs Merrill Company Inc., 1965), p. 486.
2. Joseph Gales Sr., Ed. The Debates and Proceedings in the Congress of
the United States [Annals of Congress] (Washington, D.C.: Gales and
Seaton, 1834), at 778.
3. Richard Frothingham, History of the Siege of Boston, and of the
Battles of Lexington, Concord, and Bunker Hill (Boston: Little Brown and
Company, 1903, repr. New York: DaCapo Press, 1970), p. 55.
4. The Debates and Proceedings in the Congress of the United States at
5. Ibid., at 451.
6. Ibid., at 745.
7. Ibid., at 779.
8. Ibid., at 449.
9. Jonathan Elliot, Ed. 3 The Debates in the Several State Conventions
on the Adoption of the Federal Constitution, as Recommended by the
General Convention at Philadelphia (Philadelphia: J.B. Lippincott
Company, 1836, repr. 1937), p. 378.
10. Ibid., p. 382.
11. 2 The Debates in the Several State Conventions p. 57.
12. 3 The Debates in the Several State Conventions p. 51.
13. Ibid., p. 386.
14. History of the Siege of Boston pp. 4, 5.
15. Ibid., pp. 7-9., Richard Frothingham, The Rise of the Republic of
the United States (Boston: Little Brown and Company, 1873) pp. 409-411.
16. Ibid., p. 412.
17. Ibid., p. 413.
18. Ibid., p. 417.
19. Ibid., p. 425.
20. John Adams LL.D., A Defence of the Constitutions of Government of
the United States of America (printed for C. Dilly, In the Poultry,
1787-1788, repr. New York: DaCapo Press, 1971), p. 474.
21. Ibid., p. 471.
22. Ibid., p. 472.
23. Ibid., pp. 472-474.
24. Ibid., p. 475.
25. Richard Henry Lee, An Additional Number of Letters From the Federal
Farmer to the Republican (first edition published in New York, 1788,
repr. Chicago: Quadrangle Books, Inc., 1962). pp. 169, 170.
26. 3 The Debates in the Several State Conventions p. 425.
27. Ibid., p. 426.
29. An Additional Number of Letters From the Federal Farmer to the
Republican p. 170.
30. Ibid., pp. 52, 53.
31. 3 The Debates in the Several State Conventions p. 426.
32. Edmund Cody Burnett, Ed. 2 Letters of the Members of the Continental
Congress (Washington, D.C.: The Carnegie Institution of Washington,
1921-1936) p. 124.
33. Walter C. Rodgers III, Origins of the American Tradition to
Subordinate Military to Civil Power 1776-1787 (Carbondale, Illinois: The
Department of History in the Graduate School, Masters Thesis, June
1964) pp. 12, 13.
34. John C. Fitzpatrick, Ed. 6 The Writings of George Washington
(Washington, D.C.: United States Government Printing Office, 1931-1944)
35. Julian P. Boyd, Ed. 4 The Papers of Thomas Jefferson (Princeton,
Princeton University Press, 1951) pp. 45, 46.
36. Ibid. p. 46.
37. Richard Peters Ed. Esq. The Public Statutes at Large of the United
States of America From the Organization of the Government In 1789, to
March 3, 1845 (Boston, Charles C. Little and James Brown, 1848) p. 271.
38. 3 The Debates in the Several State Conventions p. 378.
39. Francis Newton Thorpe, Ph.D., LL.D. 7 The Federal and State
Constitutions Colonial Charters, and Other Organic Laws of the States,
Territories, and Colonies Now or Heretofore Forming The United States of
America (Washington, D.C., United States Government Printing Office,
1909) p. 3418.
40. 2 Thomas Jefferson Papers pp. 34, 35.
41. 3 The Debates in the Several State Conventions p. 419.
42. 3 The Debates in the Several State Conventions p. 424.
43. The Constitution of the United States of America, Article One
44. 5 The Debates in the Several State Conventions p. 464.
45. The Public Statutes at Large p. 271.
46. History of the Siege of Boston pp. 94, 95.
47. "Lola" (a pseudonym) Re: Lola (A and E.com Message Boards at
www.historychannel.com in the discussion boards menu, original thread
posted by "Joseph" September 24, 1999 12:42pm with the title Lola.
Response from Lola titled Re: Lola September 24, 1999 12:57pm.)
48. An Additional Number of Letters From the Federal Farmer to the
Republican p. 169.