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 ….