More Second Amendment background: Debate on the Power over the militia in the Federal Convention of 1787

“As the greatest danger is that of disunion of the States, it is necessary to guard agst it by sufficient powers to the Common Govt and as the greatest danger to liberty is from large standing armies, it is best to prevent them, by an effectual provision for a good Militia.” (James Madison, Notes of Debates in the Federal Convention, 561).

I have argued in earlier blogs that in the State Constitutions in the period leading up to the United States Constitution there was very little concern with an individual right to bear arms. The States were instead worried about articulating their right and duty to have a militia with the implied ability to be able to press individuals into military service. Because the State as a political entity was understood by to have been formed to give safety to individuals, among other things, the founders understood that State had an obligation to provide security and defense of its citizens. But the State could only do so if it had a right to press people into military service, in what was called “a militia”, to distinguish it from a permanent “standing army” which was thought dangerous to liberty. If the State didn’t have that right, it could not execute its obligation to defend people.

In trying to decide whether the Second Amendment as formulated in the Bill of Rights had a focus on the right of individuals or the State’s right to have a militia (a topic on which I blogged earlier:, it is important to consider the discussion of the militia in the Convention that drafted the Federal Constitution in 1787, which took place between May and September of that year. It was in that context that the Constitution was developed and against which the Bill of Rights which followed a year after the Constitution’s ratification was framed.

One would think that if the founders were concerned about an individual’s right to bear arms that it would have surfaced during the Convention’s discussion of those powers that were being contemplated for the new national government. In fact, that topic never surfaced. However, there was discussion about how the newly envisioned national government would defend itself and what role the State militias would play.

But that discussion principally concerned the tension between the States’ powers over the militia and the powers of the new national government that was being envisaged. This focus suggests that what was really at stake was the boundary between National and State powers, not between national and individual rights. And it is reasonable to conclude that the Bill of Rights was meant to address that fear, rather than the worry over individual rights. Let’s take a look at the details of the debate during the Convention.

The Right to Bear Arms at the Federation Convention

The issue of armed forces was a critical issue for the drafters of the Constitution. Indeed, the earlier Confederation had serious weaknesses in providing for security and was one reason why a new constitution was considered critical to many. The Confederation was in essence a treaty or alliance of independent States that agreed they had shared interests that was expressed in the Articles of Confederation. But the Confederation had no power to enforce compliance from the States. The result was that during the revolutionary war with Great Britain, General Washington was repeatedly complaining because the army could not muster enough supplies, arms or even troops.

As Edmund Randolph explained at the start of the Federal Convention, “The Character of such a government ought to secure I. against foreign invasion…” And one of the defects of the Confederation was that the “confederation produced no security against invasion, congress not being permitted to prevent a war nor to support it by their own authority…” Another defect was “that neither militia nor draughts [i.e. military drafts] being fit for defense on such occasions, inlistments only could be successful, and these could not be executed without money. (“that neither militia nor draughts being fit for defence on such occasions, enlistments only could be successful, and these could not be executed without money.” See 29

Because of these defects, one of the critical goals of the Convention was to draft a revision or replacement for Articles of Confederation that would give the United States power to defend itself against its enemies. It is important to understand what the Articles of Confederation had to say about defense and the militia to understand the context of discussion in the Federal Convention.


Militias and Defense Under the Articles of Confederation
According to Article III of the Articles of Confederation, “The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.”

The Articles thus made security and defense a central goal of the Confederation. The act of War was dependent on the Congress of the United States. Essentially, the Articles of Confederation rested on the following principles:
• The States could not engage in war without the consent of the United States as expressed in the Congress
• The militias of the States brought together for common defence would provide the basis for armed defense.
• The responsibility for training, arming and disciplining the militias was left in the hands of the States
• The States also appointed the officers of the militias.
• The United States would defray the cost of common defense which it would raise by levying taxes on the States.

In language familiar from the second amendment and State Constitutions, the Articles of Confederation explicitly state that

every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed [i.e., “field”] pieces and tents, and a proper quantity of arms, ammunition and camp equipage.

The relevant articles of Confederation are included at the bottom of this blog for those who are interested in reading the original. It is against this background that the discussion of defense and the militia in the Federal Convention has to be understood.


The Discussion of Militia in the Federal Convention

In the Virginia Plan for the Constitution that Edmund Randolph proposed at the start of the Convention, the first Resolution states that the “Articles of Confederation ought to be so corrected & enlarged as to accomplish the objects proposed by their institution; namely, ‘common defence, security of liberty and general welfare.’” But the Virginia Plan did not specify explicit powers that the general legislature would have and gave only vague powers that would later be enumerated during the Convention. The 6th resolution of the Virginia Plan said the National Legislature “ought to be impowered to enjoy the Legislative Rights vested in Congress by the Confederation & moreover to legislate in all cases to which the separate States are incompent or in which the harmony of the United States may be interrupted by the exercise of individual Legislation;...” (30-31)

The Virginia plan therefore did not explicitly change the way in which the national government would organize the military or armed forces. But as the convention continued, those powers would be enumerated and discussion would take up the issue of armed forces and common defense.

Influential on that discussion, was a second plan submitted at the start of the convention, by General Charles Cotesworth Pinckney (spelled “Pinkney” in Madison’s notes) from South Carolina. The Pinckney plan enumerated the powers of the general legislature. In language that would be picked up later in the Convention, the Pinckney plan stated that: “The Legislature of the United States shall have the power …

• To raise armies
• To build & equip Fleets
• To pass laws for arming organizing & disciplining the Militia of the United States”
• To call forth the aid of the Militia to execute the laws of the Union enforce treaties suppress insurrections and repel invasions…
• And to make all laws for carrying the foregoing powers into execution. “


We shall see that the powers defined by the Pinckney plan become the beginning of a framework which is further detailed later in the Convention. The Pickney plan gave the national government power to raise an army and to call forth the aid of the militias. But it did not yet give any power to the national entity for controlling, disciplining or arming the militia.

As the Convention proceeded, discussion would focus on how to balance the powers between the national legislature and the States. On June 15th William Peterson introduced the New Jersey plan as an alternative to the Virginia plan submitted at the beginning of the Convention. New Jersey plan left the arming and disciplining of the militia pretty much as it was in the Articles of Confederation and added on this change: “the federal Executive shall be authorized to call forth ye power of the Confederated States, or so much thereof as may be necessary to enforce and compel an obedience to such Acts, or an observance of such Treaties.” (121)

If the New Jersey plan represented one end of the sprectrum on the question of the militia and security, Alexander Hamilton voiced the view at the other end of the spectrum when he gave his speech criticizing the plan. Hamilton had stayed relatively quiet until this point of the Convention. Laying out a more “national” approach, Hamilton proposed that all power to control the militias be shifted to the national government entirely for control of the militia:

XI. No State to have any forces land or Naval; and the militia of all the States to be under the sole and exclusive direction of the United States, the officers of which to be appointed and commissioned by them. (131)

Hamilton’s lengthy speech was ignored in the discussion that followed the introduction of the New Jersey plan. But as is evident later in the Convention there were other delegates like him who thought that the power over the militia should be shifted to the national government and away from the States.

As work during the Convention proceeded, the precise balance of powers between the national government and the States on the issue of armed forces would arise again and a kind of compromise would be worked out between those who favored control at the national level and those who felt the States much retain control.

On August 6th a Committee of Detail submitted an updated draft of the Constitution based on discussions over the previous two months and included an article enumerating the powers of the national legislature. The language indicates the influence of the Pinckney Plan:

Article VII, Section 1: The Legislature of the United States shall have the power….
To make war:
To raise armies;
to build and equip fleets;
To call forth the aid of the Militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections and repel invasions. (389)

At this point in the convention, the national Legislature could raise armies and could call forth the aid of the State militias, but had no power to regulate or discipline them.


Mason’s resolution and the debate over state and national power over the militia

On August 18th nearly three months into the convention, the military powers of the national legislature became the focus of discussion. On that day, Madison was listing additional powers that the Committee of detail should consider for the National Legislature. In his list, Madison gives the Executive the right “to procure and hold for use of the U.S. landed property for the erection of Forts, Magazines, and other necessary buildings.” (477)

At this point, Virginia’s George Mason introduced the question of the militia and suggested that the General Legislature be given “the power to regulate a militia.” In the August 6th draft from the Committee of Detail, the legislature had been authorized only to “To call forth the aid of the Militia” not “to regulate” it, as Mason was proposing. (478). It is interesting that it was George Mason who made the proposal to add regulation of the militia to the national powers, for throughout the Convention Mason was a proponent of the importance of States’ retaining their identities and powers. For several reasons, however, Mason thought this power should reside with the National Government and not the states. Like most other attendees at the Convention, Mason felt strongly that there should be no “standing army” in times of peace, a worry expressed frequently in the State Constitutions in the period between the Declaration and the Constitution’s ratification and in the discussion at the Convention, as we shall see.

But Mason also thought leaving the militias entirely in the hands of the States would not ensure that the United States would be ready to defend itself. “The militia ought therefore to be the more effectually prepared for the public defense.” But Mason realized that the “ Thirteen States will never concur in any one system, if the displining [sic] of the Militia be left in their hands.” Mason therefore argued that the power should reside with the legislature of the general government. At the same time, Mason acknowledged that the States wouldn’t give up the power over the whole militia, but “they probably will over a part as a select militia.”

The key challenges then was to securely defend the common interests of the United States while, on the one hand, not creating a permanent standing army and yet, on the other hand, ensuring that the militias of the States would be disciplined, armed and ready for war.

Mason was essentially proposing a kind of compromise between State and National power over the militia. He recognized that the National government needed the power to muster troops and ensure they were disciplined and armed for common defense. But he did not want to take away all of the control over the militia from the States.
A couple days later while discussing the same topic, James Madison expressed the issue perhaps most succinctly of anyone: “As the greatest danger is that of disunion of the States, it is necessary to guard agst it by sufficient powers to the Common Govt and as the greatest danger to liberty is from large standing armies, it is best to prevent them, by an effectual provision for a good Militia.” (516)

As the discussion unfolded on that first day of discussion, it became clear that the precise balance of power between the national government and the State governments was of deep concern to many with no easy agreement on exactly how to balance those powers. For example, there was a fear expressed by Elbridge Gerry from Massachusetts (481) that the proposed Constitution had no check against a permanent standing army. Gerry would later be one of three representatives who didn’t sign the Constitution because it lacked a bill of rights. If there were no check, he argued, “The people were jealous on this head, and great opposition to the plan would spring from such an omission.” (482) Along with Alexander Martin from North Carolina, Gerry proposed that there should be a clause added to the resolution setting a maximum limitation of a few thousand troops that could be maintained in times of peace.

A lively discussion then ensued in which General Pinckney from South Carolina questioned whether there might not be a need to ready troops in times of peace. If they weren’t prepared in times of peace, they wouldn’t be ready in times of war. But Gerry worried that if that were the case a few States might “establish a military Govt.”

Hugh Williamson from North Carolina reminded Gerry that an earlier resolution from Mason had guarded against such a possibility of a military government by limiting the appropriation of revenue to two years at any given time for the provision of the army (see 479). But Jonathan Dayton from New Jersey reiterated Pinckney’s view that “preparations for war are generally made in times of peace” and argued that a standing army may be unavoidable. After discussion there was unanimous rejection of Gerry’s and Martin’s proposal to limit the size of troops in times of peace (482). The Convention sided with giving the national government power to decide the size of troops in times of peace.

Mason then suggested adding additional language to his original resolution enabling the general legislature: “to make laws for the regulation and disciplining the militia of the several States reserving to the States the appointment of the officers.” Mason’s concern was that “he considered uniformity as necessary in the regulation of the Militia throughout the Union.” In his original resolution, the national legislature had the power “to regulate a militia”. Now Mason was adding an additional power “to make laws for regulating and disciplining” the militia. Mason was suggesting that the national government would not only “regulate” but also discipline. General Pinckney from South Carolina concurred and mentioned a case in which lack of uniformity during the revolutionary war has producted problems. “Uniformity was essential.”

Yet others such as Oliver Ellsworth from Connecticut thought Mason was going too far in giving the general legislature too much power. Ellsworth would be on the Committee of Detail that would produce a draft of the final language describing the balance of federal and state power on the issue of the militia. He worried that “the whole authority over the Militia ought by no means to be taken away from the States whose consequence would pine away to nothing after such a sacrifice of power.” “It must be vain to ask the States to give the Milita out of their hands.” 483 Sherman from Connecticut seconded Mason’s revised motion.

John Dickenson from Pennsylvania agreed that “the States never would nor ought to give up all authority over the militia.” Picking up on an earlier suggestion of Mason, he proposed to “restrain the general power to one fourth part at a time, which by rotation would discipline the whole Militia.” (483) But Pierce Butler from South Carolina disagreed that the power should be subdivided between the national and State governments and “urged the necessity of submitting the whole Militia to the general Authority, which had the care of the general defence.” This was a position that Hamilton had suggested earlier and that had been voiced by Pinckney already.

Mason then reminded his colleagues that he had been the one to originally suggest the idea that the States would give up control “over a part as a select militia.” He reiterated his view the General Government could, however, manage only a part of the militia. And he was also “afraid of creating insuperable objections to the plan” if the power was shifted entirely to the national government. Therefore Mason withdrew his original proposal to give the national government “power to regulate a militia” and modified it this way: “to make laws for regulating and disciplining the militia, not exceeding one tenth part in any one year, and reserving the appointment of officers to the States.” (483-4).

But General Pinckney from South Carolina, who preferred more power with the national government, renewed Mason’s original proposal which assumed that General government would regulate the whole militia. John Langdon from New Hampshire seconded Pinckney’s motion. He “saw no more reason to be afraid of the Genl Govt than of the State Govt. He was more apprehensive of the confusion of the different authorities on this subject, than of either.” (484)

Discussion now turned to the two resolutions on the table. At this point Madison chimed in that he thought the “regulation of the Militia naturally appertaining to the authority charged with the public defence. It did not seem in its nature to be divisible between two distinct authorities” thus supporting the idea of moving more power to the national body.

Given that Madison is the one who drafts the second amendment it is interesting to see him favoring the power of regulation to reside with the general government and not the States. Ellsworth thought the idea of select militia responsible to the general government impractical. He also thought the states would refuse to submit to the same militia laws.

General Pickney thought the states would see the “necessity of surrendering” the power. But he didn’t think control over the militia would solve the problem. He had “a scanty faith in the Militia” and thought “there must be also a real military force.” In Pickney’s view, there would need to be something more than a disciplined militia. “The United States had been making an experiment without it, and we see the consequence in their rapid approaches towards anarchy.” (484)

But Sherman from Connecticut reminded his colleagues that the states would want their own Militia for defence against invasions and insurrections as well as enforcement of laws. “He had no such confidence in the Genl Govt. as some gentlemen professed, and believed it would be found that the States have not.”

Mason thought Sherman made a good point and suggested an additional exemption be added to his resolution “of such part of the Militias as might be required by the States, for their own use.” George Read, from Delaware, doubted the propriety of leaving the appointment of the Militia officers in the states since the States have different methods of appointing the officers.

The day ended without a decision. There was a definite sense that “standing armies should be avoided” as threat to liberty. And many thought that leaving the States with control over the militia would leave the country vulnerable without a well-furnished armed force. But the precise distribution of power between States and National government was not resolved. A majority of eight States voted to submit the two resolutions to the Committee of Eleven (also called “the grand Committee”) to come back with a revised proposal. (485) The Committee of Eleven consisted of King, Sherman, Yates, Brearly, Govenor Morris, Read, Carroll, Madison, Williamson, Rutledge and Houston

On Monday August 20th, while the Committee of Eleven was out working on the language of two resolutions, General Pinckney submitted to the Committee of the whole a number of propositions he wished the Committee of Detail to consider. The list is interesting because it is in part a “bill of rights.” It includes:
• The liberty of the Press shall be inviolably preserved
• No troops shall be kept up in time of peace, but by consent of the Legislature.
• The military shall always be subordinate to the Civil power, and no grants of money shall be made by the Legislature for supporting military Land forces, for more than one year at a time
• No solider shall be quartered in any House in time of peace without the consent of the owner.

No mention was made of an individual right to bear arms in this list. But it did touch on limitations to the standing armies and the subordination of the military to civil powers, language familiar from the State Constitution. The discussion of the military was tabled as the House as a whole waited for the report of the Grand Committee of eleven.

The Committee of Eleven Reports

The Committee of eleven reported on Tuesday August 21st (494) on two resolutions that it had worked on. The second resolution involved the militia. It came up with the following language that picks up Mason’s language. The Legislature shall have power…
To make laws for organizing arming and disciplining the militia, and for governing such part of them as may be employed in the service of the U.S. reserving to the States respectively, the appointment of officers, and the authority of training the Militia according to the discipline prescribed by the U. States.
The discussion of this resolution took place on Thursday August 23. Initially, the discussion focused on the resolution’s language. Mason had already introduced the language of “regulating and disciplining” and the committee had added the language of “organizing” and “arming” and “training.” It also picked up Mason’s idea that the national government should regulate only a part of the militia, but didn’t try to say what percentage should be under national control.

Sherman thought the inclusion of “training” redundant since the States had this authority already. (Sherman was on the committee?)Why give them something they have already? But Ellsworth noted that the same was true of the appointment of officers. He thought the word “disciplining” might be too vague and include almost any power. King, who had been on the committee of eleven, clarified the intent of the committee explaining that “by organizing the committee meant, proportionizing the officers & men-by arming, specifiying the kind size & caliber of arms-& by disciplining prescribing the manual exercise evolutions &c.” (513)

The initial discussion of the resolution’s language provoked a discussion on whether too much power was being allocated to the general government. Gerry thought the States were being treated merely like “drill sergeants” meaning that they were just the vehicle of implementation but lacked the real power. “It would be regarded as a system of Depotism.”

But Madison noted that “arming” did not seem to include “furnishing arms” and “disciplining” did not seem to include court marshall. But King, who spoke for the committee, said that “arming” meant, not only uniformity of arms, but authority to regulate the modes of furnishing the arms.

Two alternative versions of the resolution were proposed. The first by Dayton was voted down and not discussed. The second, by Ellsworth and Sherman, proposed substitute language that reduced the power of the National government

To establish an uniformity of arms exercise & organization for the Militia, and to provide for the Government of them when called into the service of the U. States.

As they explained, this version would “refer the plan for the Militia to the General Govt but leave the execution of it to the State Govt.” This version would make the general government have power when the Militia were called into service but not during times of peace. The general government would only set uniformity but “not make laws” nor “govern”.

Langdon couldn’t understand his colleagues were debating the power of the general government. “The General & State Govt were not enemies to each other, but different institutions for the good of the people of America. As one of the people he could say the National Govt is mine, the State Govt is mine. In transferring power from one to the other, I only take out of my left hand what it can not so well use, and put it into my right hand where it can be better used.” 514.

But Gerry who favored States rights thought “it was more like taking out of the right hand and putting it into the left,” the left hand representing the national government and being less coordinated in a right-handed person. Dayton even objected to uniformity. “In some States there ought to be a greater proposition of cavalry than in others.”

But General Pinckney preferred the language of the Committee. Madison also argued that if the militia was left in the hands of the States it would be ineffective.

The primary object is to secure an effectual disciple of the Militia. This will no more be done if left to the Sates separately than the requisitions have been hitherto paid by them. The States neglect their militias now…The Discipline of the Militia is evidently a National concern, and ought to be provided for in a National Constitution. (514-15).

Luther Martin from Maryland reiterated the confidence of some that “the States would never give up power over the Militia; and that, if they were to do so the militia would be less attended to by the Genl than by the State Governments.

Randolph, who had first proposed the Virginia plan, countered Martin saying there was no worry that the militia would be brought out by a national power and “made to commit suicide on themselves.” In other words, the militia could not be turned against their own constituents. The very nature of the militia being drawn from the people prevented this. While in general he was for “trammeling the Genl Govt wherever there was danger, but here there could be none. Furthermore, “the Militia were every where neglected by the State Legislatures, the member of which courted opularity too much to enforce a proper discipline.”

At this point the States voted down the alternative wording of Ellsworth’s resolution. But theStates did agree in a vote of 9-2 to the first part of the resolution. “ To make laws for organizing arming & disciplining the Militia, and for governing such part of them as may be employed in the services of the U.S.”

On the appointment of officers
With the first clause of the Committee approved, attention turned to the second “reserving to the States respectively, the appointment of officers, and the authority of training the Militia according to the discipline presecribed by the U. States.”

Madison tried to limit the States power to appoint officers to those “under the rank of General officers.” 515 trying to enlarge the power of the national government over the discipline of the militia. But Shermand and Gerry countered. Sherman said every man of discernment would raise the alarm over this power. Gerry for his part said such powers would only make sense where the State Governments were being abolished. “He warned the Convention agst pushing the experiment too far. Some people will support a plan of vigorous Government at every risk. Others of a more democratic cast will oppose it with equal determination, and a Civil war may be produced by the conflict.” 516.

Madison responded to these criticisms by reminding his colleagues that

As the greatest danger is that of disunion of the States, it is necessary to guard agst it by sufficient powers to the Common Govt and as the greatest danger to liberty is from large standing armies, it is best to prevent them, by an effectual provision for a good Militia.” (James Madison, Notes of Debates in the Federal Convention, 561).

But Madison’s proposal was voted down, 8-3 showing the inclination to protect State power over the militias through the appointment of officers. With that the Convention approved the second clause giving the state power to appoint all the officers.

This concluded the discussion of the miltia and the balance of powers between the state and national government. Essentially, the resolution would remain the same in the final version of the Constitution presented by the committee of style on September 12th. That draft read as follows:

Article I, Section 8: The Congress …shall have the power
• To lay and collect taxes, duties, imposts, and excises; to pay the debts and provide for the common defence and general welfare of the United States….
• To declare war, grants letters of margue and reprisal, and make rules concerning captures on land and water.
• To raise and support armies: but no appropriation of money to that use shall be for a longer term than two years.
• To provide and maintain a navy.
• To make rules for the government and regulation of the land and naval forces.
• 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.
….

Article I, Section 10:
No state shall, without the consent of Congress, lay imposes or duties on imports or exports, nor with such consent, but to the use of the reasury of the United State. Nor keep troops nor ships in war in time of peace nor enter into any agreement or compact with another state, nor with any foreign power.

Conclusion
We see in the debates in the Convention no worry at all about the right of individuals to bear arms. From the debate in the Federal convention, it appears that the critical issue regarding the militia was the balance of national and state control. Most everyone agreed that a standing army was a threat to liberty of individuals. And while the national government had a power to raise armies, it could not maintain them continuously. It would have to get the legislature to appropriate funds for an army every two years. That restriction effectively gave members of the Convention confidence that the army would not be a permanent standing army. But to provide for common defense, something better than the ad hoc training of militias was needed. Here there was substantial debate on how much control to place in the national government. Effectively a compromise was worked out, with the national government having the power to discipline, arm and set rules for training the militia. But national government would only have power over a part of the militia (the exact percentage left undefined) and the States would retain the power to appoint the officers of the militia.


References:

James Madison, Notes on the Debates in the Federal Convention of 1787. New York: Norton. 1966.

Bowen, Catherine Drinker. Miracle at Philadelphia. 1986.Boston: Little Brown and Company.

(For the Pickney plan, see James Madison, the Writings, vol. 3 (1787 [ 1902] The Online Library of Liberty. A Project of the Liberty Fund, 23.

Farrand, Max, ed. The Records of the Federal Convention of 1787. Rev. ed. 4 vols. New Haven and London: Yale University Press, 1937. See online: http://memory.loc.gov/ammem/amlaw/lwfr.html


Appendix
Articles of Confederation related to armed forces, defense and the militia:

Appendix



Article VI put it, “No state shall engage in any war without the consent of the United States in Congress assembled, unless such state be actually invaded by enemies…”

Article VI…..

No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed [i.e., “field”] pieces and tents, and a proper quantity of arms, ammunition and camp equipage.:

VII.
When land forces are raised by any State for the common defense, all officers of or under the rank of colonel, shall be appointed by the legislature of each State respectively, by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appointment.

VIII.
All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.

The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States within the time
agreed upon by the United States in Congress assembled.

IX.
The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article ….

The Right to Bear Arms: Virginia, Jefferson and the State Constitutions

We have seen in earlier blogs that the right to bear arms is connected to the State’s right to marshal a militia for the security of the state:

"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."

This is the amendment that was approved after the Constitution was ratified. But what was the thinking in the States about the militia and this right before the Constitution was ratified? Were state governments worried about this right to bear arms? This is a good question to ask because the States were believed by many to be closer to “the people” and therefore to be better at protecting their rights. For example, during the debates in the Convention that created the Constitution, Oliver Elseworth, the representative from Connecticut said, “The states are the best Judges of the circumstances & temper of their own people.” (Notes on the Federal Constitution, 401).” This view that States were closer to the people is why anti-Federalists argued that the States should preserve their sovereignty and that the Federal government should not have too strong a set of powers. It is thus interesting to find that the State constitutions that were written between the Declaration of Independence and the ratification of the Constitution, and should have been “closer to the rights of the people”, are conspicuously silent or ambiguous on the individual right to bear arms. None of them seem concerned about it. What that means for the debate about the second amendment, is a matter we will come back to.

Militias, State Constitutions and the Right To Bear Arms
It is interesting to find that the State constitutions do not mention a right to bear arms. Indeed, many of the State constitutions don’t talk about individual rights at all and focus instead on the structure of the legislature, executive and judiciary only. Of those that mention arms, most do so in the context of talking about the need for a militia. None mention the individual right to bear arms.

Let’s look at some examples. Perhaps the most relevant is the Virginia State Constitution from Madison’s home state.

Constitution of Virginia (June 29, 1776):
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.

Virginia, Madison's home state, approved its Constitution shortly before the Declaration of Independence by the colonies. The Virginia Bill of Rights was written by George Mason and approved on June 12, 1776 and became the preamble of the Virginia Constitution which was approved on June 29, 1776. The Virginia Bill of Rights latter influenced many of the subsequent State constitutions and seems to have directly influenced Madison’s version of the Bill of Rights he submitted to Congress over a decade later.

The language and assumptions of the Virginia Constitution anticipate both the Federal Constitution and the Bill of Rights. And since Madison was from Virginia, and was a drafter or the Bill of Rights, we may assume that the Virginia language did influence him. But there are also some very interesting differences between these various versions.

Let’s start with the ideas that are consistent from the Virginia Constitution to the Federal Constitution and Bill of Rights….

First is the idea that a non-professional military (“a militia”) is critical for the security of the state. We also see here the familiar assumption then that a "standing army" (or full-time professional army) was considered dangerous to liberty. The idea was that regular people, who were engaged in everyday life (not “professional military” ) should be trained for military service. Since they were not professional military, they were not going to be coopted by the political powers and turned against the liberty of the local populations. While the Virginia constitution does not say the state may press persons into military service, that would seem to be an implicit implication. For if the State must have a non-professional, non-permanent militia, how else shall it ensure one? We shall see that other states make explicit the fact that the state can conscript people into militia duty.

The Virginia State Constitution therefore is focused, not on individual rights, but on the right of the State to defend itself and may have a well-regulated militia to do so. The logic of the Virginia Constitution seems to be this: People come together into a state for security and protection as a significant motivator. The State therefore needs to provide protection since that is one of its purposes. A professional army is a danger to liberty, because it comprised of people who may not be local residents and can be used by the political state to take away liberty. A military force therefore must come from the local people, themselves, or a “militia.” The State therefore has the right to enlist people into military service. The Virginia Constitution therefore focuses on protecting the right of the state to enlist and train a body of people for military service. In Madison's home state, therefore, and in the Bill of Rights he likely was influenced by, we see no mention of an individual right to bear arms. On the contrary, we see what looks like a protection of the State’s obligation to have a militia and the right to force individuals into military service.

One could, I suppose, argue that there was no reason to mention the right to bear arms in the Virginia Constitution since it was taken for granted that Virginians were gun owners at the time. But the Virginia Bill of Rights goes out of its way to protect and call out individual rights in general, such the right to a free press, religious conscience, the right to jury and so forth. Thus the fact that neither the Virginia Bill of Rights nor the Virginia Constitution make mention of the individual right to bear arms is arguably significant. This absence suggests that the Virginia legislatures did not conceive of gun possession as a right on the same level as free press and religious conscience.

The language of the Virginia Constitution anticipates both the language and the assumptions of the current second amendment with some significant differences.

(Virginia State Constitution):
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…

(Madison’s version of the amendment as proposed to Congress):
the right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country;

(Approved Second Amendment):
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."

Note how the current Second Amendment and the Virginia constitution both start with the need for a well-regulated militia being critical for the security of the state. But the Virginia Constitution says nothing about the right of the people to bear arms, whereas the approved second amendment does. That could be because the approved second amendment is conferring a right to individuals. But it could be, as I’ve discussed elsewhere, because “the right of the people” is a way of talking about the States right to conscript people into the military.

While the Virginia Constitution and Virginia Bill of Rights made no explicit provision for an individual right to bear arms, it is interesting to see that Thomas Jefferson, another Virginian who was distinguishing himself at the time, did think there were was an individual right to bear arms. Jefferson, of course, would go on to be a very close colleague of James Madison and we know that Madison and Jefferson corresponded later about the Bill of Rights.

At the time the above Virginia Constitution was drafted, Jefferson was in Philadelphia at the Second Continental Congress starting to draft his Declaration of Independence. Ironically enough, Jefferson at the time actually wanted to be back in Virginia so he could participate in the drafting of the Virginia State Constitution. But he had to take his turn in Philadelphia at the Congress to cover his more senior colleagues who returned to Virginia to draft the State Constitution. As luck would have it, this is when Jefferson was assigned to write the Declaration of Independence (for a discussion see my Jefferson, Natural Rights, and the Declaration of Independence, forthcoming).

In any case, while in Philadelphia, Jefferson wrote out what he considered a draft constitution for Virginia. But his draft arrived late in Virginia and while it did influence the condemnation of Great Britain and King George, his version of the State laws did not significantly impact the Virginia Constitution. But Jefferson did have something to say about the right to bear arms in his drafts of the Virginia Constitution. Let’s see how Jefferson thought about the matter in 1776. The brackets indicate language that Jefferson first wrote and then deleted as he reworded the language.

First Jefferson draft for the Virginia Constitution:
No freeman shall ever be debarred the use of arms. there shall be no standing army but in the time of actual war (see Boyd, The Papers of Thomas Jefferson, I:344).

In this first draft of the law, Jefferson states unequivocally that free individuals have a right to use of arms. There are actually two versions showing how he had revised it. He had written that “No soldier shall be capable of continuing in peace” and then changed it to “there shall be no standing army but in the time of actual war.” Although Jefferson does not mention the militia explicitly, he appears to link the right to bear arms to the fact that there cannot be a standing army and thus may implicitly connect the idea of bearing arms to the need for a militia.

But what is really interesting is Jefferson’s revision in his next version of the Constitution. The brackets represent words he added to the earlier draft.
Jefferson’s Second and Third draft of the Virginia Constitution:
No freeman shall be debarred the use of arms [within his own lands or tenements]. There shall be no standing army but in the time of actual war. (see Boyd, The Papers of Thomas Jefferson, I. 353) and Online: http://avalon.law.yale.edu/18th_century/jeffcons.asp

In his second and third drafts, possibly after receiving a draft of the Virginia Constitution, Jefferson significantly restricts the right to arms to a person’s private estate or lands. This is a dramatic limitation. It suggests Jefferson envisions that the right to bear arms as linked to and an extension of the rights of defending one’s property. But Jefferson explicitly forbids the right to bear arms off one’s property.

Thus even Jefferson, who goes further than the Virginia Constitution, and envisions an individual right to bear arms, and who is often cited as the ultimate defender of liberty, limits that right to a person’s own property.

We have seen, then, that Virginia, Madison’s and Jefferson’s home state does not acknowledge a right to bear arms and instead focuses on the State’s need for a militia and implied need to press people into military service. A similar disregard for an individual right to bear arms is visible in other State constitutions. Let’s look at other State constitutions that were approved before the Constitution was ratified.

Constitution of Georgia (Feb. 5, 1777):
ART. XXXV. Every county in this State that has, or hereafter may have, two hundred and fifty men, and upwards, liable to bear arms, shall be formed into a battalion; and when they become too numerous for one battalion, they shall be formed into more, by bill of the legislature; and those counties that have a less number than two hundred and fifty shall be formed into independent companies.

The constitution of Georgia uses the language of "bear arms" without declaring it a right. Instead, it discusses how the militia of the State shall be created and organized. If a country has at least 250 men "liable to bear arms", meaning old enough to bear arms, then it shall constitute a battalion. The implication is that the State can force the counties to create battalions and that the counties can conscript people into military service.

Similarly the New York and Philadelphia State Constitution focuses on the need for the militia and says nothing about the individual right to bear arms.

Pennsylvania (September 28, 1776) and New York (April 20, 1777)

And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth. And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State.

Instead of emphasizing a right to bear arms, the States of Pennsylvania and New York are explicit that “it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it.” These states are explicit that military service is an obligation of living under the protection of the State. Instead of a right to bear arms, the focus is on the duty to serve. The right to be protected by the State goes with a duty of military service. Because New York and Pennsylvania conceive of military service as an civil obligation, these State constitutions explicitly take up the case of Quakers, who are pacifists, and indicate that Quakers can be excused from personal military service by paying a tax instead.

We saw something similar in Madison’s version of the amendment for the Bill of Rights which gave exemption to people of conscience, suggesting that Madison may have had the New York and Philadelphia Constitution in mind on this point.

Here again is Madison’s language when he proposed the amendment to Congress in 1787:
the right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military services in person.

In Madison’s proposed wording of the second amendment, religious pacifists are exempt from military duty. This allusion back to the New York and Pennsylvanian Constitutions’ gives further support to the idea that Madison was conceptualizing his amendment as mandating an obligation to serve in the militia. Because he conceptualized “the people” as having a right to create a militia, they therefore had the right to press members of the State into service. This is why Madison had to deal with the case of religious pacifists.

Not all State Constitutions mention the need for a militia or the right to bear arms. New Jersey (July 2, 1776) published its Constitution but mentioned no right to bear arms and no need for a militia. New Hampshire’s Constitution (January 5, 1776) mentions a militia but says nothing about the right to bear arms. http://avalon.law.yale.edu/18th_century/nh09.asp Similarly, South Carolina’s Constitution (March 26, 1776) says nothing about a militia or the right to bear arms. http://avalon.law.yale.edu/18th_century/sc01.asp. The same is true of Delaware’s constitution (Sept. 10, 1776) (http://avalon.law.yale.edu/18th_century/de02.asp.

But in November 1776, Maryland (Nov. 11, 1776) offers a series of protections for individuals and does speak about the militia. http://www.nhumanities.org/ccs/docs/md-1776.htm In language that seems close to Virginia’s Constitution, Maryland’s Constitution states:

XXV. That a well-regulated militia is the proper and natural defence of a free government.

XXVI. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature.

XXVII. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.

We see again that the concern is with protecting the people from “standing armies” by guarding the need for a militia. No mention again is made of an individual right to bear arms. It does say however that are subject to common law of Great BritainIn December of that year, 1776, North Carolina does mention that the people have a right to bear arms. But as we shall see, it is interprets that right “for the defence of the State.”

Constitution of North Carolina (Dec 18, 1776)

XVII. That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.

North Carolina is the first State to make explicit that the people have a right to bear arms. But it is explicit that that right is “for the defence of the State.” Like the constitutions of Virginia, New York, Pennsylvania and Maryland, the focus is on protecting the people from a permanent army by giving them the right to have a militia, or to “bear arms”. Bearing arms therefore appears, in the State Constitutions at least, to be a kind of synonym for the militia.

We see a similar inclination in the Vermont Constitution (July 8, 1777)

IX. That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore, is bound to contribute his proportion towards the expense of that protection, and yield his personal service, when necessary, or an equivalent thereto; but no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives; nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law' but such as they have, in like manner, assented to, for their common good.

XVIII. That the people have a right to bear arms, for the defence of themselves and the State: and as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by the civil power.
http://avalon.law.yale.edu/18th_century/vt01.asp

Vermont makes explicit what was implicit elsewhere. The benefits of society come with a responsibility to yield personal service. The clear implication is that this means military service. This is why the constitution mentions the right of any man who is a pacifist to be exempt. In language very close to that of North Carolina, Vermont’s constitution goes on to say that the people have a right to bear arms “for the defence of themselves and the State.” The words “for defence of themselves and the State” suggest that the right is not only for protecting the State with a militia but for “defending themselves” in some additional way. This could be the first State allusion to a right to bear arms to defend their property or even guard themselves against the power of the State. It is not clear. In any case, this is as close to a right to bear arms as we find in the State Constitutions, considered so far.

We see, then, that, apart from Vermont, none of the states actually articulate an individual right to bear arms. Some of them focus on the need for a State militia and some make clear there is a state right to conscript individuals into the militia. None of the other State Constitutions suggest that there is any right of individuals to bear arms apart from the need for militia defense.
The State constitutions, as I indicated, were thought to be closer to the right of the people than the Federal constitution. Yet the States for the most part express no concern around protecting an individual right to bear arms. They are concerned about protecting the people from the risks of a standing professional army which they view as a core threat to liberty. The militia, therefore, was the alternative to the standing army, because the militia was drawn from the people themselves. It was not permanent. The people had local ties to the population and returned to the populace after their service. To ensure therefore that the State could execute its role to defend itself, it had a right and mandate to create a militia. Military service was thus an obligation of men living in the state and benefiting from the security of the State. The discussion of arms in the State Constitutions, therefore, focus on the State’s right to have, raise money for, and train a militia. As several States recognize, this means the State has a right to press people into militia service.

This foregoing interpretation of the state constitutions, incidentally, is consistent with some of the constitutions of the colonies in the century before the States achieved independence from Great Britain. The Fundamental Constitutions of Carolina from In March 1, 1669 includes the following

One hundred and sixteen. All inhabitants and freemen of ()arolina above seventeen years of age, and under sixty, shall be bound to bear arms and serve as soldiers, whenever the grand council shall find it necessary. http://avalon.law.yale.edu/17th_century/nc05.asp