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Gun rights in the 1780s and today

It’s hard for contemporary American to grasp the degree to which 18th-century Americans saw themselves as citizens of their states more so than the nation.

American militia firing at the British infantry from behind a split rail fence during the Battle of Guilford Courthouse, March 15, 1781.
Illustration by Don Troiani/National Park Service

Second of three articles.

The original U.S. Constitution, as drafted in 1787, made no mention of gun rights and guaranteed relatively few other rights.

The Constitution actually granted the federal government considerable power over the state militias, such as power to arm and discipline them and to call them into federal service to repel invasions or suppress insurrections. (It’s all in Article 1; Section 8.)

Anti-federalists — those who opposed the ratification of the Constitution – argued that the powerful new national government the framers sought to create jeopardized many important rights of the states and the people, including the independence of the state militias. If Congress had the power to arm the militias, did it also have the power to disarm them? Could the national government call up a state’s militia and send it out of state to suppress an insurrection elsewhere? (Apparently, it could.) Would a state whose militia had been thus nationalized and deployed elsewhere be defenseless? This was a special concern in southern states where the militia had duties as slave patrols, to capture runaways and to protect the white population against the possibility of a slave insurrection.

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During the hard-fought campaign for ratification, James (“Father of the Constitution”) Madison and other federalist leaders proposed a compromise. If the states would ratify the draft as it stood, the leaders of the first Congress would propose constitutional amendments to explicitly guarantee that the federal government could not trample upon basic rights and civil liberties, such as freedom of speech, press and religion and the right to keep and bear arms. Those amendments, the first 10 ratified soon after the Constitution took effect, are what we call the Bill of Rights. The right to bear arms was the second one ratified.

As you know from the previous installment, it says: “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.”

Several of the state constitutions protected the right of the militia to be armed, which modern gun-rights advocates cite as evidence that owning guns was considered as fundamental to liberty as freedom of speech. Many of those state provisions refer explicitly to a right to have guns for protection of one’s home or for hunting. If the federal amendment had picked up some of that language, it would be much easier to argue that the federal right covers such individual self-defense needs and hunting pursuits.

But the fact that the first Congress left out those references, even though they were present in some of the state constitutions, is a talking point for those who now argue that the federal right to own a gun was fundamentally tied to the militias and might not guarantee the right of non-militiamen to have guns unrelated to militia work.

Nonetheless, the Second Amendment was quickly approved by the necessary two-thirds of both houses of Congress and then quickly ratified by the requisite three fourths of the (then 13) states. It soon became largely invisible for two centuries, during which it was seldom the key point in a lawsuit and never the reason for any law to be struck down. Not until 2008 would the U.S. Supreme Court squarely face the question of whether the militia language at the beginning of the amendment meant that the right to bear arms was tightly connected to membership in a militia.

In the meantime, the concept of a state militia, as it was understood at the time, would have essentially disappeared.

State militias

In the 1780s, state militias were a vital part of the national defense. In many states, every able-bodied male (an exception would be made for members of pacifist religious denominations like the Quakers) was expected to have a gun, which he would acquire and maintain at his own expense, and to be available to be called forth to defend the state or the nation. Militias of this sort played a significant role in winning the war for independence, although ultimately the colonists developed a trained professional army (led, of course, by Gen. Washington.) But that army disbanded after the war.

The assumption in the 1780s was that the national government would not have a large standing army in time of peace and that the state militias would remain the backbone of the national defense. In time of war, a national army might be created for the duration of the war. The U.S. Constitution explicitly authorizes Congress “to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

It’s hard for contemporary American to grasp the degree to which 18th-century Americans saw themselves as citizens of their states more so than the nation. And, in fact, if you read the kind of statements that led to the adoption of the Second Amendment, it’s clear that many of the anti-federalists did not trust that the new national government would respect the sovereignty, freedom and independence of the states. Many anti-federalists noted that the Constitution did not bar the national government from building up a permanent standing army, an army that could, if you let your imagination go down this path, be used to bully, dominate and even tyrannize the states.

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Believe it or not, among the ideas that the anti-federalists floated for changes to make the Constitution more acceptable would be an amendment that would simply have barred the United States from having a standing army. Think for a second about the impact that would have had it if been adopted. But that idea, which was formally proposed, did not make it into the Bill of Rights.

During the campaign for ratification, the pro-Constitution Federalists urged their doubters to bear in mind that the militias already provided the necessary check against the threat to the states from a federal standing army. In one of the famed pseudonymous essays on behalf of the ratification that later came to known as the “Federalist Papers,” (#46), James Madison sought to assure readers that any U.S. Army that sought to oppress them would stand no chance because: “To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.”

Elbridge Gerry, a member of the Constitutional Convention who refused to sign the draft, said in the debate of the First Congress over what became the Second Amendment: “What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty.”

Tune into this line of thinking and you begin to understand why the constitutional language that gave the national government substantial power over the state militias — including, perhaps, the power to disarm them, as anti-federalist Patrick Henry suggested at the Virginia ratifying convention — was alarming.

On the contemporary far right, you can occasionally hear talk that resonates with the ideas above. But to most 21st century Americans, it borders on crazy talk for several reasons. The United States has a standing Army (and Navy, Air Force and Marine Corps) of magnitudes and capabilities far beyond anything the founding generation could have imagined. It operates a global network of military bases scattered around the world. The United States is in a state of essentially permanent undeclared war with various nations, elements and what our presidents like to call “regimes,” which is a euphemism for governments we don’t like. Some of us are alarmed by this development but not because we imagine that this standing military might be used against the states that make up the U.S.A.

Those who care about such things may be vaguely aware that the official state militia system went away long ago and was replaced (in some of its roles) by the National Guard, which has chapters in every state and which serves as a source of troops for civil emergencies within the states and for troops who can be called into active duty by the U.S. military, as many were in the Iraq war. (Some states still have organizations militias, too.)

We can no longer relate to the utterly ludicrous (in 21st century eyes) idea that not only those hardy souls who have signed up for the National Guard but all able-bodied men are expected to be armed and ready for military action and, even more ludicrous, that such a force would have any chance if it came into conflict with the actual United States Army, Navy, Air Force and Marines.

In fact, as I noted above, the Constitution explicitly authorized Congress to call forth the militia to suppress an insurrection, which suggests that a rebellion against federal authority by one state would be put down by the militia of other states under federal control. (This actually happened during the George Washington Administration when Washington mobilized elements of four state militias to put down the so-called Whiskey Rebellion, but the rebels all scattered before the troops could get there.) It is also perhaps worth noting that the Constitution itself (Article III, Section 3) defines the act of “levying war” against the federal government as treason. The idea that the Constitution intended to set up battle between federal and state military elements is a muddle at best. I’m somewhat convinced by the Madison Federalist Paper quote above that the state militias were intended to provide a check against the danger to liberty represented by a standing army, but he seems to envision a circumstance (“half a million citizens with arms in their hands”) in which all of the state militias have combined to turn back some effort to impose federal tyranny.

Muskets and single-shot cannons

It may have been the case that, in the 1780s (when the chief weapons of war were muskets, single-shot cannons that took forever to reload, flintlock pistols and cutlasses for hand-to-hand combat), in the unlikely event of a war between the U.S. military and the state militias, the sheer numbers of men making up the state militias would have given the militia side some hope.

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But now, when the U.S. military would start the conflict with pretty much a monopoly on the aircraft carriers and the aircraft, and the cruise missiles and the tactical nukes, and the attack helicopters and the battleships, and the drones and the laser-guided – OK I’ll stop without even mentioning nukes.

In the circumstances of the 21st  century, in the unlikely event that the president and the Congress was contemplating using the U.S. military to conquer, oppress or otherwise impose the will of the federal government on one or more or all of the 50 states, I am prepared to stipulate that, to the extent that the purpose of the Second Amendment was to assure that the militias of the several states would be able to deter or repel or defeat the United States military, that purpose is obsolete.

What the Supreme Court would decide 219 years later that the Second Amendment meant 219 years earlier will be discussed in the next installment of this thrilling miniseries. For the moment, let me just wrap this one up by suggesting – with full knowledge that the suggestion borders on sedition — that there is something fundamentally strange and I would say crazy about worrying too much what the words and phrases “keep and bear” and “arms” and “well-regulated militia” meant to James Madison or Patrick Henry or the very small number of ordinary white, male Americans who voted for the state legislators who ratified the Second Amendment in 1790.

Thursday: The U.S. Supreme Court and the Second Amendment.