A Well-Regulated Militia: The Meaning of the Second Amendment According to the Founders
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 Irving Brant.
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 entirely.
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 all.
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. The Second Amendment does not guarantee the right of the states to arm militias.
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 principles. 16.
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 disciplined.
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 creditors in Adams’ native Massachusetts. It is something which must have been on his mind as he wrote this work.
Richard Henry Lee 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 Lee used the pronoun are, not the collective is when referring to the militia. George Mason, used 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 oneself when
accused, right of assembly, right of redress of grievances, and freedom from having to quarter soldiers in private homes.
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. 34.
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 incidents like that described by General Washington.
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 Richard Henry Lee described as a select militia having, "attachment to the society and government," than it is a general militia.
If the National Guard were a modern day militia, and if the Second Amendment guaranteed the right of the states to maintain militias, and if the governor of a state wanted to oppose a federal law he could do so with impunity. He could be assured that to enforce federal law the United States Army would have to be employed. That is not the case though; the National Guard is not a militia. In reality the governor in this scenario would learn, as did Governor Wallace in Alabama when he made his symbolic stand blocking the school house door, that the National Guard is not a modern day militia. The National Guard is a branch of the Army and not an arm of the state, and it can be employed by the federal government to impose the will of the federal government on the states.
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 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 militiamen 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 governments. 42.
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 militias except that Congress might call them into national service.
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 city. The inhabitants who left 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; . . ." 46. 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.
As the British army sat penned up under siege in the city for several months however General Howe, who had replaced General Gage, received intelligence that some civilians who remained in the city had not turned in their weapons. Those citizens had previously been considered loyal Tories, but as the American lines outside the city became more impenetrable the general became more suspicious-even paranoid of the intentions of the citizens for keeping their arms. He ordered that all civilians were, "immediately to surrender them at the court-house, . . .that all persons in whose possession any fire-arms might hereafter be found should be deemed enemies to his majesty’s government." 47. Thus English citizens lost one more liberty that had long been enjoyed as a rite of free men. Arbitrary government would not tolerate the possibility of armed resistance.
While the Militia Act of 1792 called 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. 48. 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.
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. 49.
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."