THE MILITIA AND THE CONSTITUTION: A LEGAL HISTORY

Military Law ReviewMilitary Law Review Spring, 1992

Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.

I. Introduction

In examining the subject of the militia and the Constitution, a number of important issues immediately come to mind–the “federalism” issue of state versus national control of the militia, the “checks and balances” issue of presidential versus congressional control of the national military establishment, the issue of the political compromises reached in an effort to overcome the inherent weaknesses of the Articles of Confederation, and the paramount issue of civilian control over the military. To the Framers of the Constitution, the militia issue of perhaps the greatest significance, however, was the more fundamental question of the nature of the militia as a legal and political institution. Although less obvious to us today, that issue went to the very essence of the military’s role in the new democratic republic and figured prominently in the debate over the ratification of the Constitution.

Nowhere in the Constitution is the term “militia” actually defined. Yet, when the Framers of the Constitution referred to the militia in the text of the document and the ratification debates, they had very definite ideas of what they meant. Their concept of the militia as a legal and political institution was a product of English heritage, as it was modified by the uniqueness of the American experience. It differed radically [p.2] from our own concept. Specifically, what we think of today as the militia–that is, the National Guard–would have been viewed as a “standing army” by political leaders of the Revolutionary era.

At the same time, however, the Framers’ concept of the militia was not static. Throughout the period of the Articles of Confederation and the early republic, changing political, economic, and strategic realities were forcing a reexamination of the militia’s nature and role. This reexamination occurred along lines similar to what had occurred in England less than a century before. The language relating to the militia that the Framers ultimately chose for inclusion in the Constitution and Bill of Rights sought to reconcile the traditional Anglo-American view of the militia with the uncertainties of changing circumstances. The end result was a set of provisions that proved to be sufficiently flexible to endure the test of time and to accommodate the changing needs of the new nation.

The purpose of this article is to examine the role of the militia in the legal history of the Constitution and Bill of Rights. In doing so, it will emphasize the common-law origins of the militia as a legal and political institution, and the militia’s role in the development of Anglo-American democratic institutions and the concept of individual liberties.

II. The English Background

A. Common-Law Origins of the Citizen Militia.

The citizen militia is one of the most ancient of Anglo-American institutions. Sir William Blackstone credited Alfred the Great with the development of the militia system, stating: “It seems universally agreed by historians, that King Alfred first settled a national militia in this kingdom, and by his prudent discipline made all the subjects of his dominion soldiers . . . .” [1] More recent historical research, however, has suggested that the origins of the early militia can be traced back at least to the seventh century and, in all likelihood, “the obligation of Englishmen to serve in the . . . peoples’ army is older than our oldest records.” [2] Clearly, the citizen militia, as an institution with a legal identity of its own, had existed for centuries prior to the Norman Conquest.

[p.3] The Saxon militia, known as the fyrd, was a “general” militia composed of all able-bodied men. In times of emergency, it was called out only in districts actually threatened with attack. Service in the fyrd was usually of short duration and the participants legally were obligated to provide their own arms and provisions in accordance with their socioeconomic standings. The system was well suited for an island kingdom with a simple agrarian economy and no need to project military power externally. The success of the Norman Conquest usually is attributed to a lack of Saxon leadership after the death of Harold, rather than any shortcoming with respect to the fyrd system. [3]

The only “professional armies” during the Saxon era were a few contingents of housecarls attached directly to the households of the King and the great Earls. These contingents were small in number because they were expensive to maintain. For the battle of Hastings, Harold could muster a force of only about 2200 housecarls, his own double force of about 2000 as King and Earl of Wessex, and several hundred more from his brothers Gyrth and Leofwine, whose earldoms adjoined his own. This was at a time when the total fyrd for all of England numbered around 50,000. [4] In earlier times, these contingents were even smaller. In the seventh century, for instance, the Dooms of Ine defined a group of seven men or less as “thieves,” a group of seven to thirty-five men as “a band,” and a group of more than thirty-five men as “an army.” [5]

William the Conqueror retained the fyrd system, but modified it by distributing the land to his followers to be held on a system of military tenure. [6] Under this system of feudalism, each estate was obligated to provide a particular number of appropriately armed knights for military service. [7]

Because the military duty ran with the land, determining who owed service and how many men he was obligated to provide soon became complicated and easily disputed. For instance, the same individual might owe military service to two landowners in conflict with each other, or a major landowner might be able to [p.4 call upon his subordinate tenants to fight with him against the King. [8] These problems were made more acute because the feudal lords were notoriously unreliable. Of the ten largest Norman landowners listed in the Doomsday Book, two had their lands forfeited for disloyalty before the survey was completed, and six more rebelled within fifteen years.

Beginning in the twelfth century, the system of scutage was introduced, which allowed the vassals to pay a fixed sum instead of actually producing knights for service. [9] The rise of scutage was a by-product of economic changes. In the early feudal period, money was so scarce that land itself became the index of wealth, and service-in-kind became the rule. As money in circulation rose, it became increasingly feasible to reduce military obligations to cash payments. The King could then use the money to hire professional soldiers more amenable to his control. This situation served to increase tensions between the King and his barons. Armed conflicts became common as both groups sought to protect and expand their political and economic positions. Abuses with respect to the practice of scutage actually were one of the major complaints that the barons sought to remedy with the Magna Carte. [10] These early conflicts were the antecedents of later disputes between the Crown and Parliament over matters of taxation and the control of the military establishment.

The Norman conquerors militarized the country, seized the estates of the Saxon hierarchy, built large numbers of castles manned by Norman men-at- arms, and taxed and abused the [p.5 native population. Saxon villages, towns, and manors were sacked and burned; their inhabitants were raped, robbed, and murdered. In the north of England, the Normans devastated thousands of square miles of countryside, leaving much of the area uninhabitable for a generation. The experience instilled in the common people a hatred and distrust of the Norman soldiers and a corresponding fondness for their native Saxon institutions, one of which was the fyrd.

Although the distinction between Norman and Saxon eventually faded, friction between professional soldiers and the civilian population continued. The Middle Ages was a time of almost continuous warfare as English kings sought to secure their thrones domestically and maintain their foreign possessions.

Internally, the English experienced a number of private and civil wars of which the conflicts between Henry III and Simon de Montfort, as well as the War of the Roses, were the most notable. Additionally, there were constant military conflicts in the marches of Wales until the thirteenth century and on the Scottish border in the fourteenth and fifteenth centuries. It was England’s external conflicts of the period, however, that played the largest role in molding the English peoples’ attitudes toward the professional army and the militia. From the time of the Norman Conquest to the conclusion of the Hundred Years War in the middle of the fifteenth century, English kings were involved in an almost continuous series of military campaigns to defend or recover their continental possessions.

Feudal sources alone were insufficient to meet the need for soldiers to fight in the continental wars. A feudal tenant was obligated to provide military services only for a limited period–usually no more than forty days a year. [11] This brief period was all but useless in an age when conquest required lengthy sieges. Additionally, most of the King’s vassals denied that they owed service beyond the channel, in the Angevin’s continental possessions. The extraction of services was made even more difficult where fiefs had been subdivided over time among co-heirs. To circumvent these problems, English kings increasingly came to rely upon armies of professional soldiers, under the command of indentured captains, that were financed [p.6 with money raised through scutage, burdensome taxes, or plunder.

The new mercenary armies were made up largely of tramps, beggars, criminals, and persons who were “pressed” into military service. In one year alone, for example, Edward I pardoned 450 murderers and numerous lesser offenders in exchange for their services in the army. These soldiers were notorious for their mistreatment of the civilian population regardless of whether it was friend or foe. In Normandy, for instance, one fifteenth century writer advised Edward IV that his military officers had “suffred to be done unponisshed to the pore comons, labororers, paissaunts of the saide duchie” a variety of “tirannyes, ravynes, and crueltees.” The officers were accused of allowing their men to beat and manhandle the peasants, and to “mischieve[] theire bestis withe theire wepyns.” [12]

B. The Militia as a Constitutional Institution.

The experience of the Middles Ages instilled in the English people a deep aversion to the professional army, which came to be associated with oppressive taxes, physical abuses to persons and property, and acts of oppression. Conversely, it fostered a corresponding fondness for the traditional institution of the militia, which was perceived as an inexpensive and nonthreatening means of national defense. The development of these attitudes was to have a profound effect on the evolution of civil liberties and democratic institutions in both England and America.

The English militia concept was unique because of its plebeian character. By 1181, every English freeman was required annually to prove ownership of weapons according to the worth of his chattels, and to serve the King at his own expense when summoned by the sheriff of his county. [13] In 1253, an Assize of Arms expanded the duties still further to encompass villeins or serfs–the lowest socioeconomic group in English society. [14] The universal nature of the obligation again was confirmed [p.7] in 1285, by the Statute of Winchester, under Edward I. [15]

This trend toward the universal participation in defense was reinforced by the ascendancy of the longbow as a characteristically English weapon. The longbow was inexpensive and suitable for the mass armament commoners, but had sufficient power to pierce the armor of a feudal knight. In the thirteenth and fourteenth centuries, English armies–composed largely of commoners equipped with longbows–inflicted stunning defeats upon traditional French feudal forces in such notable clashes-of-arms as Crecy, Poitiers, and Agincourt. As a result, the Middle Ages saw the enactment of a series of laws designed to encourage the keeping of, and the maintenance of proficiency with, longbows. The 1285 Statute of Winchester established the requirement that “anyone else who can afford them shall keep bows and arrows.” [16] A century later, Edward III ordered the sheriffs of London to force “every one of said city strong in body, at leisure time on holidays,” to “use in their recreation bowes and arrows.” [17] His successor, Richard II, extended this policy, commanding that “every Englishman or Irishman dwelling in England shall have a bow of his own height;” that each town maintain an archery range; that games of dice, horseshoes, and tennis be banned to force citizens to use the bow for sport; and that prices of bows be controlled to make them available to even the poorest citizens. [18] Not until the sixteenth century did English monarchs seek, for various political and religious reasons, to restrict the possession or use of weapons to the wealthier classes. [19]

The concept of a general militia differed radically from the continental feudal system, which limited the right of armament and the duty of fighting in defense to a relatively small and wealthy class. [20] The end result for the English was the evolution [p.8 ] of an institution that exercised a moderating influence on monarchical rule and aided in the development of the Anglo- American concept of individual liberties. Examples of this occurred throughout the Middle Ages. In 1065, an army of disgruntled people under the leadership of thanes revolted against Tostig, Earl of Northumbria, killing his armed retainers and plundering his treasury and armory at York. In 1381, a group of armed peasants, led by Wat Tyler, held London at its mercy for a short time during popular unrest that resulted from the economic distress which had persisted in England since the Black Death.

The British military historian Sir Charles Oman provided a particularly cogent case in point, noting of Henry VIII: More than once he had to restrain himself, when he discovered that the general feeling of his subjects was against him. As the Pilgrimage of Grace showed, great bodies of malcontents might flare up in arms, and he had no sufficient military force to oppose them. His “gentlemen pensioners” and his yeomen of the guard were but a handful, and bows and bills were in every farm and cottage. [21]

The influence of the militia concept on English legal and social institutions did not go unnoticed to contemporary observers. As early as the 1470’s, Sir John Fortescue, Chief Justice of the King’s Bench and a veteran of the War of the Roses, distinguished between France’s “jus regale” and England’s “jus regale et polliticum.” “Jus regale” can be rendered “royal law” or “law of the King”; “polliticum” can be rendered as “of the state,” “national,” or “of the republic.” Fortescue maintained that the French peasants were starved and impoverished so that they were “crokyd” and “feble,” and unable to defend the realm: “nor thai have wepen, nor money to bie them wepen withall.” Thus the French King, unable to use his unreliable nobility or his weak and unarmed peasants, was forced to rely on mercenaries: “Lo, this is the frute of his Jus regale. Yf the reaume of Englonde, wich is an Ile, and therfor mey not lyghtly geyte soucore of other landes, were rulid vnder such a lawe and vnder such a prince, it wolde be a pray to all oper nacions pat wolde conqwer, robbe or deuouir it.” Conversely, [p.9 Fortescue saw Englishmen as healthy, wealthy, and well armed, “wherfore thai ben myghty, and able to resiste the adversaries of this realme, and to beete oper reaumes that do, or woldee do them wronge.

Lo, this is the fruty of Jus polliticum et regale, under wich we live.” [22]

A century later, Sir Walter Raleigh–corsair, explorer, and historian–made a similar observation, assigning to the “barbarous and professed tyranny” the plan “to unarm his people of weapons,” while the “spohistical or subtle tyrant” would seek “to unarm his people and store up their weapons, under pretense of keeping them safe.” [23] Thus, by the fifteenth century, Englishmen already regarded the citizen militia as a critical element in their development of “government under law.” Thereafter, that view would be reinforced by the rise of royal absolutism on the continent.

C. The Upheavals of the Seventeenth Century.

The English militia system reached its ascendancy during the dictatorships of the great Tudor monarchs. With the loss of British holdings in France during the mid-fifteenth century, England had stood mainly on the defensive, and the number of professional soldiers had dwindled to a handful of body guards and coastal garrisons. This decline was paralleled by an expansion and perfection of the militia system and the implementation of a domestic policy aimed at suppressing the military establishments of the nobility. The reign of Elizabeth I, in particular, saw an increased organization of the militia, complete with mandatory annual drills, inspections, and target practice. Its size alone was striking to foreign visitors of the era. In 1539, the French ambassador reported that “in Canterbury, and the other towns upon the road, I found every English subject in arms who was capable of serving. Boys of 17 and 18 have been called out, without exception of place or person . . . .” [24] A few years later, the English Government was able to keep a body of 120,000 men available throughout the summer.

[p.10]] 1. The Militia and the Events of the Seventeenth Century.–The great militia system established by the Tudors all but collapsed during the reign of the pacifistic James I, who acquiesced in the repeal of the militia statutes. The reign of his son, Charles I, saw the resurgence of the ancient nemesis, the professional army. Under the influence of the Duke of Buckingham, Charles had become involved in a series of wasteful wars against France and Spain. As in the past, professional soldiers were used in these conflicts and allegations arose over the mistreatment of civilians by the soldiers as they traveled to their continental passages. Parliament, which was deeply distrustful of Buckingham and his policies, balked at subsidizing these military ventures. Charles’s solution was to attempt to circumvent parliamentary authority by raising revenue through such means as the extraction of customs duties know as “tonnage and poundage,” the revival of feudal rights, the granting of “patents,” and the extension to inland counties of the infamous tax known as “ship money.” The situation eventually evolved into civil war in 1642. Blackstone, like later historians, concluded that the question of control over the militia “became at length the immediate cause of the fatal rupture between the king and his parliament.” [25] The seriousness of the militia issue was illustrated by the atypically firm response of Charles: “By God, not for an hour. You have asked that of me in this, which was never asked of a King.” [26]

During the ensuing conflict, both sides relied upon the use of standing armies, often armed with weapons confiscated from the militia. Both of these armies were responsible for abuses committed against the civilian population, which furthered the aversion to the army. Sir Thomas Fairfax, a parliamentary leader, noted of his opponents that: [they] are extremely outragious in plundering puting no deferanc at all betweene friends and supposed enemis . . . taken al that hath been usefull for them and ript up featherbeds and throwne the feathers in the wind to be blowen away for sport and scaned all the barrels of beere and wine and spilt it in their sillers. They have kild of one mans 1,000 sheepe and throwne away much of it they could not eats, many other outrages they commit to large exspres this way . . . . [27]

[p.11]] The English Civil War ended in a total parliamentary victory and Charles’s attempts to revive the conflict ended with his trial and execution. Within a short time, however, Parliament’s attempts to dissolve the army–while conveniently ignoring that many of its regiments had been unpaid for months– and to prosecute religious independents led to a military takeover of the government. The precipitating event was Parliament’s attempt to enact a militia ordinance; and one of the first acts of the new “Rump” Parliament, which was put into power by the army, was to rescind that ordinance. In 1654, yet another Parliament was dissolved after it tried to enact a similar law. That body was replaced by a new Parliament which was nominated by officers of the army. Within a year, Oliver Cromwell had pressured it into dissolution and replaced it with yet another Parliament, which named him “Lord Protector” of England. [28] In 1655, however, even this Parliament began to press for a reduction of the standing army and a revitalization of the militia. Cromwell finally dissolved it and created a military government that divided the nation into eleven districts–each district headed by a major general whose duties included political surveillance, censorship, and influencing elections. These districts were assigned a special militia–limited to slightly over 6000 men–who were paid by the government on a yearly basis.

After Cromwell’s death, the remnants of the Rump Parliament were recalled in May 1659 and, within a few months, it passed “An Act for settling the Militia in England and Wales.” [29] The title, however, was misleading, because the officials administering the statute were authorized to muster only “well affected persons,” and were on the other hand empowered to: search for and seize all arms, in the custody and possession of any popish recusant, or other person that hath been in arms against the Parliament, or that have adhered to the enemies thereof, or any other person whom the Commissioners shall judge dangerous to the peace of this Commonwealth.

The new Rump Parliament did not last long. The commander-in-chief of its army advanced on London with his own troops, overthrew the New Model Army without a fight, and called a new Parliament. This parliament invited Charles II, the son of [p.12]] the executed King, to return. The rule of the military junta had ended, but occurring as it did, barely a century before the American Revolution, it had left a bitter taste for all concerned: “The soldier is no longer an injured citizen; he is a danger to the state.” [30]

Charles II demobilized the army, keeping only troops that he felt would be loyal to the new regime.

Using his own prerogative in the absence of statute, he reconstituted a very limited organized force and began trying to disarm his opponents. He issued instructions commanding the Lords Lieutenant of the militia to exercise their troops: “well-affected officers chosen, the volunteers who offer assistance formed in troops apart and trained; the officers to be numerous, disaffected persons watched and not allowed to assemble, and their arms seized . . . .” [31] Five months later, he caused a militia bill to be introduced in the Commons, but it encountered opposition based more on the harassments and excessive arms searches by the organized militia than on the terms of the bill. [32] Only in 1662 did Charles get his militia statute, after trumping up reports of various plots against the government and stacking the committee considering the bill with his father’s former officers. [33]

Like the militia establishments under the Protectorate, Charles’s “select” militia was composed only of a small part of the population–many fewer than had been enrolled in the militia in the less populous times of Elizabeth I. Under the new militia statute, those “charged” with providing a militiaman were exempted from service if they hired substitutes in their places, and were required to swear “that it is not lawful upon any pretense whatsoever to take arms against the king.” [34] Other provisions of the 1662 Militia Act empowered lieutenants of the Militia to confiscate all arms owned by any person “judge[d] dangerous to the peace of the kingdom.” [35] To buttress those measures, parliament enacted amendments to the Hunting Act in 1671 that were designed to disarm the non-[p.13]] landowning population. [36] The Calendars of State Papers for the period are filled with examples of the enforcement of these measures. [37]

Charles II was succeeded by his brother James II. James’s major drawback was that, while officially head of the Anglican Church and King of a nation that barred Catholics from appointive office, he was himself a practicing Catholic. Within a few months, he was faced with a rebellion led by the Duke of Monmouth–Charles II’s charismatic illegitimate son–who portrayed himself as the savior of Anglicanism.

The local militia proved incapable of stopping the rebellion, which finally was put down by regular troops.

In response, James greatly increased the size of the regular army, but because no act authorized him to impose martial law, discipline was weak and clashes with civilians were frequent. [38]

Concurrently, he continued and expanded the arms confiscations that had been begun by his brother, directing them increasingly against his political opponents–the new Whig party. In December 1686, orders were sent to six of the Lords Lieutenant of the militia, informing them that the King had heard “that a great many persons not qualified by law under pretence of shooting matches keep muskets or other guns in their houses,” and that the King therefore desired “that you should send orders to your Deputy Lieutenants to cause strict search to be made for such muskets or guns and to seize and safely keep them till further order.” [39] The records of the period show many searches executed under the authority of either the Militia Acts or the Hunting Act. [40]

James’s civil policies alienated the Whigs, and his religious policies alienated the Anglican establishment, which was the normal bulwark of the throne. In November 1688, England nominally was “invaded” by his son-in-law, William of Orange, and his daughter, Mary, forcing James to flee to the continent. This bloodless coup came to be known as the “Glorious Revolution.” [p.14]] 2. The Militia in Seventeenth Century Legal and Political Thought.– The previous centuries had witnessed a decline in the power of the monarchy and the destruction of the baronage as a political class. Governments arose and fell in relatively rapid succession, often through the force of arms, and the English people grew accustomed to the idea of popular participation in the political process. Those turmoils predictably inspired political theoreticians to suggest various changes designed to modify or improve the political system. The ideas of one of those groups of thinkers, the Classical Republicans– members of which came to be associated with the Whig Party–would have a significant effect upon the leaders of the American Revolution. [41]

The Greek and Roman republics provided the inspiration for the Classical Republicans. Its members came to view the militia concept as more than just simple tradition. The belief that such a militia was “necessary to a free State” soon became central to their political thought. They drew upon the ideas of Niccolo Machiavelli, who had explained–and had attempted to implement–a national militia centuries before. Writing to an Italy that had seen its city- states and mercenary armies defeated by the French and Spanish, Machiavelli advocated an Italian nation led by a popular prince and based on a national militia. [42] Machiavelli viewed mercenaries as “. . . disunited, ambitious, without discipline, faithless, bold amongst friends, cowardly amongst enemies . . . [and] hav[ing] no fear of God, and keep[ing] no faith with men.” [43] To him, their lack of patriotism left no motivation beyond wages, which were not enough to motivate men to die. More fundamentally, any mercenary army powerful enough to defend a state would be more than powerful enough to subjugate it. [44] The great Florentine expanded upon those themes in his Art of War, in which he concluded that a prince who relies upon mercenaries must either remain [p.15]] embroiled in wars, or risk overthrow when the mercenaries became unemployed with the advent of peace. [45]

To Machiavelli, the militia ideal offered a means of escape from this dilemma. Not only would it render the republic militarily powerful, it also would ensure the citizenry against decadence by maintaining their public spirit and self-reliance. Members of the militia would remain citizen-soldiers, and would comprise a force for stability–not urban mobs: [I]t is certain that no subjects or citizens, when legally armed and kept in due order by their masters, ever did the least mischief to any state . . . . Rome remained free for four hundred years and Sparta eight hundred, although their citizens were armed all that time; but many other states that have been disarmed have lost their liberties in less than forty years. [46]

It was through the writings of James Harrington that Machiavelli had his greatest impact upon English thought. [47] Harrington applied Machiavelli’s ideas to seventeenth century England, substituting a republic of freeholders for rule by a popular prince. The outcome for Harrington was a stable republic in which all landowners would vote and serve in the militia. Ownership of land gave independence; unlike feudal landholders, the modern freeholder owned in fee simple and was not obligated as a condition of tenure to fight for a superior. Instead, he defended his own rights and interests. Harrington’s rejection of royal absolutism was intertwined with his belief that property, political power, and arms should be in the same hands. Such a republic would face few internal or external threats, because those with arms also would have the greatest economic and political interest in maintaining the state. [48]

When Harrington wrote during the 1650’s, efforts to maintain a standing army actually were destabilizing the nation. After the Restoration, the army played a different role–that [p.16]] of maintaining royal power. Harrington’s assumption that an army could not be financed and controlled adequately was compromised, and his followers–particularly Henry Neville–modified his theory.

Whereas Harrington had assumed a standing army could not stabilize a government–whether good or bad–Neville and other post-1675 Classical Republicans asserted that a standing army could be a stabilizing influence to an autocratic regime. [49] Conversely, democracies could obtain a unique advantage by arming the general population: “[D]emocracy is much more powerful than aristocracy, because the latter cannot arm the people for fear they could seize upon the government.” [50]

Harrington’s followers also reinterpreted his utopia in a conservative light, arguing that traditional English practices actually had been republican. “The arming and training of all the freeholders of England . . . as is our undoubted ancient Constitution, and consequently our Right,” argued Robert Molesworth; “so it is the Opinion of most Whigs, that it ought to be out in Practice.” [51] Thus the Classical Republicans ultimately cast the militia not only as part of the republican utopia, but also an underpinning of the existing English constitution.

Before Harrington’s successors could refine the argument for the militia vis-a-vis the standing army, however, they were overtaken by events. In 1688, James II had relied–to no avail–upon a standing army staffed with hand picked officers and financed out of personal funds, rather than parliamentary appropriations. Although mustering more than twice the number of troops as his opponent, William of Orange, internal dissension and his own failure of leadership prevented him from offering battle, and he fled into exile.

This “Glorious Revolution” and William’s and Mary’s acceptance of the throne offered by Parliament did nothing to reduce the support for the standing army. England’s acceptance of William also meant being drawn into the ongoing struggle between Holland and France, and facing the risk of James’s return with a French army. The need for the projection of military force on the continent had returned and, as always, the militia was totally unsuited to this task.

[p.17]] Several other realities now also favored reliance on a standing army. An invasion, if it came, would be spearheaded by well-trained French troops, during a period in which such training was becoming of increasing importance. Technical improvements over the course of the seventeenth century had complicated the role of the average infantryman immensely, requiring that he be trained to execute a multitude of orders effectively. “[O]fficers became not merely leaders, but trainers of men; diligent practice in peace-time, and in winter, became essential; and drill, for the first time in modern history became the precondition for the military success.” [52] Conversely, the financial revolution of the 1690’s, which saw the creation of a national bank and the acceptance of national debt, made the funding of a large standing army possible. This increasing tactical and economic sophistication was paralleled by the realization that political means could guarantee legislative control of the army. Parliament could keep a tight rein on the standing army by limiting appropriations and by enacting “Mutiny Acts” of intentionally short duration. [53]

The standing army’s increased viability forced the post-1688 Whigs to face the prospect of becoming members of the establishment they had formerly opposed. [54] Some, like Molesworth, hedged: A Whig is against the raising or keeping up a Standing Army in Time of Peace; but with this Distinction, that if at any time an Army (tho even in Time of Peace) should be necessary to the Support of the very Maxim, a Whig is not for being too hasty to destroy that which is to be the Defender of his Liberty. [55]

[p.18]] Others continued to defend the renaissance ideal of the citizen- freeholder-soldier, and argued that treating military skills as a specialization would lead inevitably to tyranny and corruption. Their ideas gained great currency in the colonies, where John Adams estimated that nine- tenths of Americans were Whigs by the outbreak of the Revolution. [56] The wealthier and more conservative colonists, such as Adams and George Mason, would find them particularly persuasive. In England, however, their views became simply “the Opposition.” [57]

Consequently, a standing army had become more acceptable to Englishmen in the years after 1688.

The Whig historian, Macaulay, described the transition as follows: What had been at first tolerated as an exception began to be considered as the rule. Not a session passed without a mutiny bill, regarded merely as an occasion on which hopeful young orators fresh from Christchurch were to deliver maiden speeches, setting forth how the guards of Pisistratus seized the citadel of Athens, and how the Praetorian cohorts sold the Roman empire to Didius. At length these declamations became too ridiculous to be repeated. The most old fashioned, the most eccentric, politician could hardly, in the reign of George the Third, contend that there ought to be no regular soldiers . . . . [58]

The domestic political changes that occurred in England throughout the seventeenth century also created a favorable climate for a reevaluation of the traditional militia concept. The primary legacy of the 1689 settlement had been the supremacy of Parliament. Bodin’s maxim, that every government must have a single, ultimate repository of sovereignty, was accepted; and the British Government’s repository was [p.19] fixed in Parliament. The militia might be a “constitutional institution,” but “the Constitution” was what Parliament said it was. [59] Parliament now had little need for the militia as a check on monarchical rule, and had no need for any institution that might serve as a threat to itself.

This changing attitude met with surprisingly little popular resistance. Service in the militia was viewed by many as an expensive and onerous duty. The militia’s moderating influence upon the crown had not derived from its legal status per se, but had been a by-product of the universal armament of the commoners. So long as they retained a “right” to keep their arms, Englishmen were more than willing to forego their collective duty to serve in the militia.

The domestic political changes soon were paralleled by changes in the law. Throughout the seventeenth century, the common-law courts, under the leadership of Coke, had struggled to establish the doctrine of the “supremacy of law.” In doing so, they had managed to turn what had been the feudal duties of the overlord toward his tenants into the equivalent of legal duties of the King toward his subjects. These duties emerged as fundamental common-law rights of Englishmen, which the courts would secure, even against the crown. [60]

At the same time that the common-law courts were prevailing in their conflicts with the Stuart Kings, a juristic theory also developed–abstractly individualistic in nature–which subscribed to the existence of fundamental “natural rights.” This theory, an outgrowth of the emphasis on individualism that began with the Reformation and grew with the emancipation of the middle class, held that these rights existed independently of states, and that states could not alter or abridge those rights, but were under an obligation to secure them. [61] The theory originally took two different directions. Hobbs and his adherents conceived of these rights as the outgrowth of a social contract; Grotius and his successors viewed them as qualities inhering in individuals. The latter approach, which [p.20] placed rights above civil society, ultimately prevailed. Society, however, gradually reconciled these two views, and the social contract was reinterpreted–not as a source of rights, but as a means for enhancing the security of preexisting natural rights. [62]

At a practical level, the natural rights approach was merged with the common-law rights approach and, in the words of the great American legal scholar, Roscoe Pound, “By a natural transition, the common-law limitations upon royal authority became natural limitations upon all authority and the common-law rights of Englishmen became the natural rights of man.” [63] The concept of the militia as a “constitutional institution” was altered dramatically as a result of this transition.

After James’s departure, Parliament, meeting on its own initiative as a “convention,” formulated a “Declaration of Rights” that William and Mary, its nominees, were required to accept prior to taking the throne. They then formally called a Parliament, which enacted the Declaration of Rights as the Bill of Rights. The Declaration was not intended as a radical statement of the rights of individuals. Because constitutional government was being held in limbo pending its drafting and acceptance by the intended sovereigns, speed was essential, and its principles had to be ones acceptable to virtually all members of the legislature, from the most conservative Tory to the most radical Whig. It was accordingly drafted–not to introduce new principles of law, but merely as a “recital of the existing rights of Parliament and the subject, which James had outraged, and which William promised to observe.” [64] This essentially conservative consensus was to become the basis of the English and American theory of rights that predominated during the American Revolution less than a century later.

The debates over the Declaration in the House of Commons show that arms confiscations under the Militia Act were a widespread grievance. [65] Sir Richard Temple, for example, criticized the militia bill as containing the power to disarm all England. [66] Mr. Boscawen’s crucial speech focused upon the oppressive [p.21] acts of Parliament, as well as the King. [67] Sergeant Maynard also complained that “an Act of Parliament was made to disarm all Englishmen, whom the lieutenant should suspect, by day or by night, by force or otherwise,” [68] and that the Militia Act was “an abominable thing to disarm the nation, to set up a standing army.” [69] Many others seconded their complaints.

The declaration that the House of Commons finally voted out was in the form of a list of grievances and parallel rights. The list of grievances included a statement that “The Acts concerning the militia are grievous to the subjects.” Although this statement clearly focused upon the rights of the individual, or “subject,” the Commons still alluded to the concept of the armed citizenry as a collective institution with the additional statement that “the subjects . . . should provide and keep arms for the common defense; and that the arms which have been seized and taken from them be restored.” [70] The House of Lords found this combination of individual right and remedy with a collective purpose unacceptable. The grievance section of the Commons’ draft was altered into a general indictment of James’s policies. He had endeavored “to subvert and extirpate” the “laws and liberties of this kingdom” by, inter alia, “causing several good subjects . . . to be disarmed . . . .” [71] The second passage was altered even more profoundly. The “common defense” proviso was replaced with a recognition that individuals might possess arms “for their defense .. . as allowed by law.” [72] To avoid confusion over the phrase, “as allowed by law,” Parliament amended the Hunting Acts to delete firearms from the list of contraband. [73] The House of Commons paralleled this with an amendment to the Militia Act that repealed all power to seize firearms, although this latter bill was lost in the House of Lords when William dissolved Parliament. [74] Its provisions, however, soon were incorporated into colonial militia statutes. [75] As the British military historian, J. [p.22] R. Western, later observed, “The original wording implied that everyone had a duty to be ready to appear in arms whenever the state was threatened. The revised wording suggested only that it was lawful to keep a blunderbus to repel burglars.” [76]

In England, therefore, the legal transformation of militia service, from feudal duty to individual right, was relatively swift. The Lords’ changes, which prevailed in conference, emphasized the concept of the individual right to arms. The final form of the declaration did not so much as mention the militia.

Standing armies were mentioned, but the only objection was that they were maintained “without consent of Parliament.” A purely royal army was contrary to law; one created by Parliament, however, was quite consistent with the Constitution. In short, the common law would recognize an individual right to keep and bear arms that was separate and distinct from the related concept that a militia was an especially appropriate way of defending a free republic. [77]

The Enlightenment theories, with their emphases on the rights of the individual, would spread rapidly in the American colonies, finding their strongest support among the more liberal colonial leaders, such as Jefferson, Paine, and Samual Adams. Eventually, the concept of an individual right to keep arms would overshadow and supplant the Renaissance ideal of the republican militia, and would flourish in the age of Jeffersonian democracy.

D. The Decline of the English Militia

The rise of parliamentary supremacy, the acceptance of the standing army, and the emergence of the juristic theories of individual rights were paralleled by a decline of the militia system in England. This process was hastened by the rural disorders of the 1760’s, which inspired fear in the gentry of the militia-trained portion of the populace. Lord Barrington, for instance, feared that “a few soldiers, commanded by a weak, ignorant subaltern might be defeated by a very large mob, full of men lately used to arms in the army and militia.” [78]

[p.23] The general militia in England was supplanted steadily by a select militia, which achieved efficiency by a sacrifice of almost every traditional attribute. The 1761 Militia Act, for instance, authorized mustering of only a few hundred men from each county. Those chosen were, if wealthy, able to hire another to serve as a substitute; those actually serving were issued government arms, stored by the officers under lock and key. The lieutenant of the county– or one of his deputies–was authorized “to employ such Person or Persons as he or they shall think fit, to seize and remove the arms, clothes and accoutrements belonging to the militia, whenever [they] shall adjudge it necessary to the peace of the kingdom . . . .” [79] Not surprisingly, the Whig mayor of London would inform Parliament a few years later that the militia “could no longer be deemed a constitutional defense, under the immediate control and direction of the people; for by that bill they were rendered a standing army to all intents and purposes whatever . . . .” [80]

III. The American Experience

A. The Militia in the Colonies

Although the militia, as an institution, declined in England during the eighteenth century, it retained vitality in the American colonies. Unlike the mother country, colonial America lacked both the need to project military force beyond its borders, and an economy that could support a significant standing force. The colonists quickly adapted the militia system to the Indian conflicts, creating multijurisdictional confederations, rapid response units, and long-range patrols. They also assimilated the views of the English Whigs and Classical Republicans, with their stress upon the militia’s role in a free republic, and the juristic theories that espoused the concept of individual rights.

The militia in the American colonies, like its British counterpart, also came to play a role as a popular check on the excesses of royal authority. In the seventeenth century, Bacon’s Rebellion against Virginia’s Governor, Sir William Berkeley, [p.24] was accomplished with militia support, as was the northeastern colonies’ revolt against the Royal Governor, Sir Edmund Andros. The militia’s role in this regard increased over time so that by the second half of the eighteenth century “. . . scarcely a decade passed that did not see the people in arms to redress official grievances.” [81]

The colonists experienced their own standing army controversy, beginning in the mid-1700’s, with the arrival of thousands of British regulars during the Seven Years War. The problem was caused by the lack of sufficient barracks to accommodate such large numbers of soldiers. Prior to the Seven Years War no need for barracks existed. After the war, however, they acquired a symbolic value. To build permanent barracks was to admit that standing troops had a permanent place in the colonies, something that no colonial legislature would concede. Accordingly, General Edward Braddock received rebuffs to his requests for supplies and lodging for his men. In 1756, New York City initially refused to provide winter quarters for 300 British soldiers under the command of Braddock’s successor, John Campbell, Earl of Loudoun. After much delay, the city finally raised a fund to pay for lodging the men, but only after Loudoun’s threat to bring in more troops. Throughout the colonies, British commanders encountered similar problems in their dealings with hostile colonial legislatures.

The end of the Seven Years War left England with a sizable empire to manage and large frontiers to defend. Expansion into the interior was discouraged, to maximize the lucrative fur trade with the Indians, and revenue-producing taxes were imposed. The implementation of these new policies required the permanent stationing of a large standing army throughout the colonies. In 1765, the British Parliament enacted the Quartering Act, which required the colonists to bear the cost of providing [p.25] barracks and supplies for the resident British soldiers. [82] To raise revenue from the colonists to help cover the costs of maintaining the army, Parliament also enacted the hated Stamp Act. [83]

Implementation of these acts immediately met with opposition in the colonies. In New York, General Thomas Gage’s request for quarters and provisions was resisted by the legislature. The British response was to suspend the New York Assembly until it acquiesced to the General’s demands.

In 1768, the growing opposition to the British trade and revenue regulations resulted in the redeployment of the regular soldiers from the colonial frontier to locations near the seaboard cities. These soldiers were used to assist in law enforcement and increasingly became the objects of colonial hostility. In cities like Boston, confrontations between soldiers and civilians sparked fistfights, riots, and similar incidents, of which the Boston Massacre of March 5, 1770, remains the most vivid example. The situation was aggravated in 1774 with the enactment of yet another quartering Act by the British Parliament. [84] The 1774 Act, one of the so-called “Intolerable Acts,” was even more onerous than the 1765 Act in that it authorized the quartering of soldiers in the private homes of the colonists.

As had been the case in the English Civil War a century earlier, the issue of control of the militia became the catalyst for igniting the conflict. In 1774, the British Government banned the export of arms and ammunition to the colonies, and instructed General Gage to disarm rebellious areas. The effect of the British efforts was to harden American resistance, and the colonists began to form the “minutemen”–a nationwide “select” militia organization. Radicals called for new elections for militia officers, and the resulting elections effectively purged pro-British officers from militia ranks, giving the radicals a firm hold on the organizations. Movements to upgrade the militia units spread rapidly. Patrick Henry’s famed “give me liberty or give me death” speech, for instance, was directed to his resolution “that a well-regulated militia, composed of gentlemen and freemen, is the natural strength and only security of a free government.” [85]

After several attempts to raid militia arsenals in the Boston area–some successful and some unsuccessful–an intended [p.26] raid on the Concord arsenal brought about the outbreak of war at Lexington and Concord. At almost the same time, British authorities in Virginia secretly emptied the powder magazine at Williamsburg, but were discovered as they made off. The Virginians responded by mustering militia units, confronting British officials, and seizing 200 muskets from the governor’s mansion. The unusually bad timing of the two raids brought Massachusetts and Virginia–which otherwise had little in common–into an alliance in revolution, and united the leadership of New England and the South.

The resentment against the standing army was expressed at the onset of the Revolution in the First Continental Congress’s Declaration of Resolves of 1774 [86] and in the Declaration of Independence of 1776. [87] In the Declaration, the complaint against the standing army was defined as political in nature and was leveled against the King alone in the phrase, “He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.” Provisions relating to standing armies also were included in the declarations or constitutions adopted by a number of the colonies. The provisions found in about half of those documents reflected the view that the standing army problem was a political issue resulting from a lack of legislative control. Typical of that approach is the statement in the Maryland Declaration of Rights of 1776, “[t]hat standing armies are dangerous to liberty, and ought not to be raised or kept up, without legislative consent.” [88] The remainder of the documents, however, contained provisions that espoused the traditional Classical Republican notion that standing armies in peacetime represented a threat per se, regardless of whether or not they had been raised by legislative consent. Those provisions are similar to the one found in the Pennsylvania Declaration of Rights of 1776: “. . . as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up.” [89]

[p.27]

B. The Militia in State Constitutions and Bills of Rights

Provisions in the various declarations and constitutions of the colonies also reflected the beginnings of a divergence of opinions on the nature and purpose of the militia as an institution. Virginia, which was the first colony to adopt these documents, chose a constitution and bill of rights that was drafted by a committee, and was taken predominantly from the proposals of the conservative George Mason. [90]

The prevailing version recognized, “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.” [91] It made no mention, however, of an individual right to arms.

The committee charged with the initial drafting of the Virginia documents was composed predominantly of large land owners. The Virginia Constitution, as finally adopted, looked to the maintenance of the status quo and reflected the Classical Republican emphasis on the establishment of a stable republic.

Mason’s original draft actually contained a substantial property requirement for legislators, [92] and did not recognize a “right” to freedom of religion. Instead, it acknowledged a “toleration of the exercise of religion,” [93] along the lines of the British Toleration Act which, for practical purposes, exempted certain faiths from the ban on nonestablishment churches. [94] Only the intervention of the novice legislator James Madison enabled an American president later to boast, “It is now no [p.28] more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.” [95]

Virginia’s rejection of Thomas Jefferson’s draft document, with its Enlightenment approach, was indicative of the Virginia gentry’s philosophical orientation. Jefferson’s draft would have extended the franchise to any taxpayer, divided state lands among the landless citizens, ended importation of slaves, and banned the establishment of religion. [96] His proposal contained no mention of the militia or its role in a republic, but instead included an individual right to arms: “No freeman shall ever be debarred the use of arms.” [97]

The contrast between Mason’s and Jefferson’s proposals reflected a correlation that would be seen in later efforts by other states. Constitutions that maintained the Classical Republican link between land ownership and electoral participation also stressed the ideal of a citizen militia. On the other hand, constitutions that accepted the Enlightenment concept of near- universal manhood suffrage largely ignored the militia ideal and instead stressed an individual right to arms.

Pennsylvania adopted a bill of rights only a few months after Virginia, but its political situation was nearly the opposite of the one in Mason’s state. The Pennsylvania convention was dominated by a radical coalition whose political base consisted of small farmers in the western part of the state and “mechanics,” or skilled tradesmen, in Philadelphia. Its product was decidedly Jeffersonian in nature, extending the franchise to any taxpayer over the age of twenty-one, and giving a greater scope to individual rights. [98] John Adams later would note that Pennsylvania’s “bill of rights [was] almost verbatim from that [p.29] of Virginia.” [99] Respecting the militia issue, however, the word “almost” is one that bears emphasis because Pennsylvania clearly departed from the Virginia approach by deleting the Virginia reference to well-regulated militias and by adding a new recognition “[t]hat the people have a right to bear arms for the defense of themselves and the State.” [100]

In states in which a relatively even split between liberal and conservative elements existed, efforts were made to reconcile the diverging views on the nature of the militia. The Massachusetts Constitution, whose chief author was John Adams, contained an elaborate provision for the democratic election of militia officers. Captains and subalterns were to be elected by their companies; higher officers were to be elected by their subordinates; major generals were to be appointed by the legislature. [101] In the bill of rights, Adams chose an unusual mode of trying to compromise the arms verses militia issue. He took the language of the Pennsylvania convention, expanded it by recognizing for the first time a right to “keep” as well as to “bear” arms, but then qualified the right by recognizing it only with regard to “the common defense.” [102]

Given Adam’s legal background and his general suspicion of the people and of mobs, his approach was hardly surprising. To “keep” arms was, after all, a more precise rendition of the 1689 English Declaration than the “to bear” language used in the other state constitutions. The 1670 English Hunting Act, which prohibited arms to the poor, had used the phrase “have or keep,” and the phrase, “keep arms,” had appeared in post-1692 English case law interpreting the Act as modified after the Declaration of Rights.

[103] The qualifier, “for the common defense,” probably shared similar roots. Adams was mindful of the legitimate uses of arms, such as hunting, self-defense, and militia duty. He was mindful, however, about the misuse of [p.30] arms for mob action or anarchy. In his Defense of the Constitution, he would later write: To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, counties or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws. [104]

The character of Adams’ work was indicative of his status as one of the premier attorneys in the colonies. With far greater precision than is typical in the constitutional process, he sought not only to ensure the breadth of the right he desired, but also to fix its boundaries. His efforts, however, were not fully appreciated by his fellow Massachusetts citizens, who did not share his fear of the common people. A meeting of the citizens of Williamsburg objected to the language, noting that “we deem it an essential privilege to keep Arms in our Houses for Our own Defense” and that the qualifier might be read to allow government to “Confine all the fire Arms to some publick Magazine.” [105] Likewise, in Northampton, an objection was raised that the right to keep and bear arms “is not expressed with that ample and manly openess and latitude which the importance of the right merits” and should be changed to “[t]he people have a right to keep and bear arms, as well, for their Own as the Common defence.” [106]

Consequently, by 1780, Americans had begun to reassess the legal and functional nature of the militia along lines similar to what had occurred in England a century before. The ancient concept of the general militia as a “constitutional institution,” serving as a check on governmental excesses, was starting to erode. In its place was emerging the belief that the interests of the people now could be protected effectively by the establishment of democratic governments, offering legal guarantees of [p.31] individual rights. This transition process was for the moment tentative. For instance, it is that Jefferson–who had served on the committee to organize the Virginia militia– was actually an opponent of the militia concept. Likewise, Mason, who was a firearms collector and George Washington’s hunting partner, was an improbable supporter of popular disarmament. The difference in their approaches was still one of emphasis, rather than substance. This would change, however, when the experiences of the war and the security needs of the new nation eventually forced American political leaders critically to reevaluate the militia’s traditional role.

C. The Effects of the Revolution and the Changing Security Needs of the New Nation

After the Revolution, Americans found themselves in a position similar to that of post-1689 English Whigs–that is, the former opponents were now in control. Many now found a limited standing army necessary and acceptable. The militias generally had acquitted themselves poorly during the major organized battles of the war and had been the subject of constant and bitter criticism. [107] At Guilford Courthouse, for instance, the Virginia and North Carolina militias broke and ran before sustaining a single casualty. The militias’ American commander noted, “[t]hey had the most advantageous position I ever saw, and left without making scarcely the shadow of opposition.” [108]

George Washington complained, “To place any dependence upon Militia, is, assuredly, resting upon a broken staff. If I was called upon to declare upon Oath, whether the Militia have been most serviceable or hurtful upon the whole; I should subscribe to the latter.” [109] As Alexander Hamilton later observed, the exclusive dependence on the militia “had like to have cost us our independence . . . . The steady operation of war against a regular and disciplined army can only be successfully conducted by a force of the same kind.” [110]

The increasing support for the standing army was reinforced by the fact that the conclusion of the war had left the former [p.32] colonies facing an uncomfortable military situation. The British remained in Canada and some of the forts in the West; the Spanish were in Florida; and the French controlled Louisiana and the Mississippi River. Additionally, hostile Indian tribes were still a concern and several states were threatened with internal insurrections. The traditional militia was, by its nature, inadequate to cope with these problems.

In the end, the pragmatic security needs of the new nation took precedence over the adherence to an increasingly outmoded political theory. As in post-1689 England, the standing army would be denounced, derided, and retained; the militia would be lauded, idealized, and changed.

1. The Militia and the Constitution.–The changing view toward both the standing army and the militia was evident at the Constitutional Convention held in Philadelphia in the summer of 1787, where the debate on the subject of a permanent military establishment had centered upon its size and control, rather than the necessity for its existence in some form. [111] The constitution that the convention proposed granted Congress the exclusive authority “[t]o raise and support armies.” [112] The only restriction on this power was a two-year limitation on any appropriation for that purpose. [113]

Additionally, the document granted Congress the authority to provide for the “calling forth [of] the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions.” [114] It also gave Congress the authority to provide for the “organizing, arming, and disciplining, [of] the Militia, and for [the] governing of such Part of them as may be employed in the Service of the United States.” [115]

The only power over the militia that the document reserved for the states was the authority to appoint officers and train the militia “according to the discipline prescribed by Congress.” [116] With the exception of the Article I, Section 9, limitations on ex post facto laws, bills of attainder, and peacetime suspensions of habeas corpus, the draft Constitution did little to recognize individual rights. [117] The contrast between the breadth of powers granted to the new national government [p.33] and the traditional views toward the standing army and the militia led to conflicts during the ratification process.

The Antifederalists were quick to seize upon the obvious argument that, while standing armies were still anathema to most Americans, the proposed Constitution gave the national government unlimited authority to “raise and support armies.” Federalists were hard pressed to deny or to justify this provision. Instead, they sidestepped the issue by advancing the existence of the militia as a counterpoise to the risks of a federal standing army. Hamilton, in The Federalist No. 26, suggested, It is not easy to conceive a possibility that dangers so formidable can assail the whole union as to demand a force considerable enough to place our liberties in the least jeopardy, especially if we take into our view the aid to be derived from the militia, which ought always to be counted upon as a valuable and powerful auxiliary. [118]

While in The Federalist No. 46, Madison argued that a standing army of 25,000 to 30,000 men would be offset by “a militia amounting to near a half million of citizens with arms in their hands, officered by men chosen from among themselves . . . .” [119] The Antifederalists were not persuaded by these arguments, in part because of the degree of control over the militia given to the national government by the proposed constitution. The fears of the more conservative opponents centered upon the possible phasing out of the general militia in favor of a smaller, more readily corrupted, select militia. Proposals for such a select militia already had been advanced by individuals such as Baron Von Steuben, Washington’s Inspector General, who proposed supplementing the general militia with a force of 21,000 men given government- issued arms and special training. [120] An article in the Connecticut Journal expressed the fear that the proposed constitution might allow Congress to create such select militias: “[T]his looks too much like Baron Steuben’s militia, by which a standing army was meant and intended.” [121] In Pennsylvania, John Smiley told the ratifying convention that “Congress may give us a select militia which will in fact be a standing army,” and worried that, [p.34] with this force in hand, “the people in general may be disarmed.” [122] Similar concerns were raised by Richard Henry Lee in Virginia. In his widely-read pamphlet, Letters from the Federal Farmer to the Republican, Lee warned that liberties might be undermined by the creation of a select militia that “[would] answer to all the purposes of an army,” and concluded that “the Constitution ought to secure a genuine and guard against a select militia by providing that the militia shall always be kept well organized, armed, and disciplined, and include, according to the past and general usage of the states, all men capable of bearing arms.” [123]

The more radical opponents of the proposed Constitution, who also found the standing army objectionable, had scarcely a good word for the militia for a far different reason. To them the danger was not that the Congress would fail to discipline the militia adequately–thereby allowing the Republican tradition to lapse–but that Congress might endanger individual liberties by using its powers too forcefully. Militia discipline to them posed a danger to the individual. [T]he personal liberty of every man, probably from sixteen to sixty years of age, may be destroyed by the powers Congress have in organizing and governing of the militia. As militia they may be subjected to fines of any amount, levied in a military manner; they may be subjected to corporal punishments of the most disgraceful and humiliating nature; and to death itself, by the sentence of a court-martial. [124]

In Virginia, George Mason expressed the fear that the proposed militia provisions could allow the national government to “subject[] [militiamen] to unnecessary severity of discipline in time of peace, confining them under martial law, and disgusting them so much as to make them cry out, ‘give us an army.”‘ [125] His concerns were shared by Patrick Henry, who saw the potential of excessive federal requirements such as requiring special firearms for federal duty, as adding too much to the citizens’ burdens. “The great object is that every man be armed,” [p.35] he argued, “but can the people afford to pay for double sets of arms?” [126]

The Antifederalists were also skeptical of the Federalists’ argument that the universal armament of individual citizens would remove any basis for concern over the standing army. In the first major Federalist pamphlet, aimed at the people of Pennsylvania, Noah Webster had contended, Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops than can be, on any pretence, raised in the United States. [127]

On a similar theme, Madison, in The Federalist No. 46, invoked “the advantage of being armed, which the Americans possess over the people of almost every other nation,” avowing that if European civilians were comparably equipped, “it may be affirmed with the greatest assurance that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.” [128]

The problem with those arguments, however, was that they assumed something that the language of the proposed constitution did not guarantee–that the individual citizen had a “right” to keep arms. The issue of the absence of this guarantee was raised repeatedly at the state conventions as their attendees debated ratification.

In Pennsylvania, the first state to consider ratification, the radical minority put forth a group of proposals that mirrored almost every provision of the later federal bill of rights. [129] Those proposals included a provision that expressly recognized an individual right to bear arms. They also included a provision calling for the organization, armament, and training of the militia to remain a state responsibility, as well as a provision [p.36] for no militiaman to be forced to serve outside of his state of residence. [130] No mention was made of the necessity of the militia to a free republic. Although the proposals did not prevail in the state’s convention, the publicity accorded them ensured that they were considered by members of later conventions. [131]

In states where the ratification vote was expected to be close, Federalist leaders were quick to see the advantage of accepting proposals for bills of rights to secure passage of the proposed constitution. By the time of the ninth ratification vote, three major proposals for bills of rights had surfaced. Each proposal sought a clearly individual right to bear arms, but none lauded the necessity of the traditional militia.

New Hampshire became the ninth state to ratify the proposed constitution, making it binding on the states which had already signed. Among the states that as yet had not ratified, however, were the major commercial states of Virginia and New York. Because the absence of those two states would, in all likelihood, have proved fatal to any union, the battle over ratification continued.

In Virginia, the Federalists’ task was complicated by the state’s unusual alignment on the federal constitutional issues. The leaders who opposed an unamended constitution, and were calling for a bill of rights, came from varied backgrounds. The conservative George Mason and the liberal Thomas Jefferson joined forces to promote a bill of rights, despite their earlier differences over what that bill should contain.

They were joined by the fire-brand Patrick Henry and the more staid Richard Henry Lee, both of whom defy simple classification. Although Mason was a strong supporter of the traditional militia concept, he was acutely aware of the threat to the institution, which resulted from the lack of an individual right to keep arms. Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people–that was the best and most effectual way to enslave them–but that they should not do it openly; but to weaken them and let them sink gradually, by totally disusing and neglecting the militia. [132]

[p.37] Patrick Henry shared similar fears. The “militia, sir, is our ultimate safety,” he argued, yet, “[t]he great object is that every man be armed . . . every one who is able may have a gun.” [133] Even Richard Henry Lee concluded, “to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.” [134] Although, to Lee, “the young and ardent part of the community, possessed of but little or no property” could not be relied upon as the militia, he nevertheless thought that this part of the community should be allowed to possess arms. [135]

Virginia ultimately ratified the Constitution by the close vote of eighty- eight to eighty, but only at the price of simultaneous proposals for a bill of rights. [136] The proposals were drafted by a committee that included Antifederalists Lee and Mason, as well as Federalists James Madison, John Marshall, and George Wythe. [137] On the arms versus militia issue, this committee took an unusual approach.

Previous proposals either had emphasized the importance of the traditional militia or had recognized an individual right to arms. The Virginia committee chose to do both, and spliced together language that extended protection both to militia needs and individual rights. In its final form this provision read “that the people have the right to keep and bear arms; 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 . . . .” [138] The lack of the qualifier “for the common defense” in the arms segment of the provision was indicative of the committee’s recognition of the individual right as being separate and distinct from the militia issue.

The Virginia proposal is noteworthy because it marked the first time a state ratifying convention had so stressed the need for a militia. The committee’s approach of combining a militia recognition with a statement of individual rights, as expected, had a broader appeal than either provision taken alone. Not surprisingly, it supplanted the previous models, and was employed [p.38] almost verbatim in the ratifying conventions in New York and North Carolina. [139]

2. The Militia and the Bill of Rights.–After the ratification of the Constitution, Madison found himself cast in the unlikely role of father of the Bill of Rights. He had argued against a bill of rights in his contributions to The Federalist papers and at the Virginia convention had stated that “A bill of rights would be a poor protection for liberty.” [140] As a result, he had been passed over for a seat in the first Senate, and when he ran for the House, his district was “gerrymandered” to his great disadvantage. His later change in attitude–although partly the result of Jefferson’s influence–was due in large measure to his own need for popular support in his closely contested congressional race. A campaign letter that he dispatched included a promise to get Congress “to prepare and recommend to the States for ratification, the most satisfactory provisions for all essential rights.” [141]

Madison’s first step toward drafting a bill of rights was to obtain a pamphlet that listed all of the state proposals. [142] He then embarked upon a process of editing. Out of hundreds of proposals–many redundant and some questionable–he assembled a condensed list of usable proposals. As had been the case with the English Declaration of Rights, the purpose of the exercise was not to “create” entirely new rights, but to formulate a document that represented a present consensus of opinion about the obvious rights of human beings. This process necessarily involved discarding all controversial proposals.

As he informed Jefferson, “every thing of a controvertible nature that might endanger the concurrence of two-thirds of each House and three quarters of the States was studiously avoided.” [143] After excluding the controversial propositions, Madison still had to single out the most desirable proposals, and then select the specific terms of the guarantees.

In resolving the arms versus militia issue, language that combined a militia statement with a recognition of an individual right fitted Madison’s objectives perfectly. A militia statement standing alone likely would have been unacceptable to liberal [p.39] groups such as the Pennsylvania minority, Samual Adams and his supporters, the New Hampshire majority, and possibly Jefferson himself–all of whom had advocated an individual right to arms and none of whose efforts had so much as mentioned the militia. Conversely, an individual right to arms clause, standing alone, might well have irritated supporters of the traditional militia such as George Mason and possibly Richard Henry Lee, both of whom were powerful Virginians. In addition, both were figures with whom Madison still had to deal because they would vote on his proposal–Mason as a Virginia legislator and Lee as a member of the federal Senate. By joining the two issues, Madison would be assured of broad-based support for his proposal. He naturally chose language that already had proved acceptable to both groups. “[T]he 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.” [144]

Much of Madison’s handiwork underwent substantial editing in both the House and the Senate, but his militia and arms proposal survived relatively unscathed. In the version finally passed by the House, the order of the provisions was reversed: “A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.” [145] Although the first casualties of the House’s editorial process were his preambles and explanations, the militia statement and the right to arms guarantee both were retained. The House apparently did not think that either portion of what would become the Second Amendment was redundant; nor did the Senate, which emphasized the differing natures of each provision. On the one hand, it refused to add “for the common defense” to the right to arms guarantee, which would have suggested that the guarantee’s purpose was linked solely to the militia; on the other, it replaced the House’s statement that the militia was “the best security” of a free state with a stronger statement that it was “necessary” to the security. [146]

The other issues related to the military were dealt with more expeditiously. Madison restricted subjection of the militia to martial law in what would become the Fifth Amendment by guaranteeing jury trials to militiamen not in actual service during [p.40] times of war or public danger. [147] The involuntary quartering of soldiers was prohibited in what would become the Third Amendment. [148] Conscientious objection was addressed in an addendum to the militia statement, although that addendum was later removed by the Senate. [149]

Accordingly, Madison was able to resolve five of the arms- and military-related concerns that had been raised by the ratifying conventions.

Significantly, the one military concern that Madison did not address in the Bill of Rights was the call for limitations on a standing army. As he had previously stated to Jefferson, “I am inclined to think that absolute restrictions . . . are doubtful . . . . Should an army in time of peace be gradually established in our neighborhood by [Britain] or Spain, declarations on paper would have . . . little effect in preventing a standing force for the public safety.” [150] By 1789, Americans had crossed the line the English Whigs had passed a century before–that is, a standing army might be a nuisance, but now it was an American nuisance. Statesmen still would condemn it, but also would continue to authorize it.

Moreover, unlike the other military concerns, the details of limiting the standing army were eminently “controvertible.” Federalists in the conventions strongly had opposed any limitation, and no consensus had developed among the supporters of limitations. Madison wisely avoided inserting these controverted provisions in his draft and, when others proposed them in the Senate, their motions were defeated uniformly. [151] Consequently, the Bill of Rights would not be a barrier to the maintenance of a standing army.

D. The Decline of the General Militia in America

The inclusion of the militia provisions in what became the Second and Fifth amendments proved insufficient to prevent the original ideal of the American militia from ultimately going the way of its English counterpart. Pre- 1789 American political thought had emphasized the need to enroll all citizens–or at least freeholders–for militia duty, and had rejected the idea of a “select militia,” in which only a portion of the population was enrolled. Provisions that authorized the new Congress [p.41] to provide for the arming and organizing of the national militia were seen as allowing it to require that all citizens possess arms of uniform caliber and conform to a standard of drill. [152] In practice, while various administrations prepared detailed plans along those lines, Congress refused to enact them. [153] Washington’s first annual address acknowledged that “[a] free people ought not only to be armed, but disciplined; to which end a uniform and well-digested plan is requisite.” [154] His second address courteously hinted that the “establishment of a militia” was among the “subjects which I presume you will resume of course, and which are abundantly urged by their own importance.” [155] One year later, Washington again listed militia legislation as “a matter of primary importance whether viewed in reference to the national security to the satisfaction of the community or to the preservation of order.” [156]

In 1792, Congress enacted the first (and until 1903, the last) national Militia Act. [157] While this Act required all white males of military age to possess a rifle or musket–or, if enrolled in cavalry or artillery units, pistols and a sword–it did nothing to guarantee uniformity of calibers, fixed no standards of national drill, and failed even to provide a penalty for noncompliance. The subsequent presidential calls for detailed organization of a national citizen army went unheeded. [158] By 1805, even Jefferson was reduced to asking for a select militia, which had been anathema even to conservatives a few years before. In a message to Congress Jefferson stated, “I can not, then, but earnestly recommend to your early consideration the expediency of so modifying our militia system as, by a separation [p.42] of the more active part from that which is less so, we may draw from it when necessary an efficient corps fit for real and active service, and to be called to it in regular rotation.” [159]

Within two decades of the ratification of the Constitution, American political leaders had abandoned the original concept of the militia, and in the words of one historian, “The ideological assumptions of revolutionary republicanism would no longer play an important role in the debate over the republic’s military requirements.” [160]

IV. Conclusion

The wisdom of Madison’s approach to the resolution of the militia issue was born out by subsequent events. The language relating to the militia, which he chose for inclusion in what became the Constitution’s Second and Fifth Amendments, was specific enough to satisfy both the supporters of the Renaissance militia ideal and the advocates of the Enlightenment theories of liberal democracy. The approach, therefore, resolved most of the concerns that had been raised during the ratification process.

More importantly, however, that language also proved to be flexible enough to allow the nation to meet its changing military needs pragmatically when new political, economic, technological, and strategic realities necessitated an abandonment of revered, but outmoded, military practices.


* Attorney, Office of the Solicitor, United States Department of the Interior. B.A., University of Virginia, 1976; J.D., College of William and Mary, 1979. Member of the Bars of Virginia and District of Columbia.

** Attorney, Resolution Trust Corporation, B.A., University of Arizona, 1972; J.D., University of Arizona, 1975. Member of the Bar of Arizona.

1. 1 WILLIAM BLACKSTONE, COMMENTARIES [p.40]9.

2. 1 J. BAGLEY & P. ROWLEY, A DOCUMENTARY HISTORY OF ENGLAND 1066-1540, at 152 (1965).

3. See generally C. HOLLISTER, ANGLO-SAXON MILITARY INSTITUTIONS (1962); 1 F.

GROSE, MILITARY ANTIQUITIES RESPECTING A HISTORY OF THE BRITISH ARMY (1812); Brooke, The Development of Military Obligations in Eighth and Ninth Century England, in ENGLAND BEFORE THE CONQUEST 69 (P. Clemoes & K. Hughes eds. 1971).

4. D. HOWARTH, 1066 THE YEAR OF THE CONQUEST 43-44, 80 (1970).

5. C. STEPHENSON & F. MARCHAM, SOURCES OF ENGLISH CONSTITUTIONAL HISTORY 6-7 (1937).

6. Blackstone, supra note 1, at [p.41]0; see also 2 id. at [p.44]-58.

7. Id.; see D. DOUGLAS, THE NORMAN ACHIEVEMENT 174-75 (1969); I. SANDERS, FEUDAL MILITARY SERVICE IN ENGLAND (1956).

8. See Brooke, supra note 3, at 97. For example, a vassal frequently found that he owed fealty to both of two lords presently at war with each other. Medieval jurists at length determined that in these situations the vassal personally must fight for the one to whom he had first sworn fealty, while hiring a mercenary of equal skill to fight in his place for the other. Both lords then were barred from forfeiting lands for default or treason. See B. TUCKMAN, A DISTANT MIRROR 260-61 (1978).

In an effort to avoid this problem, in 1086, William the Conqueror required every land holder to swear directly to him “loyalty against all men.” R. ADAMS, A CONQUEST OF ENGLAND 214-15 (1965). Maitland considered the combination of that oath and fyrd duty as the crucial distinction between English and Continental political ideals. F. MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND 162 (1908). Jolliffe, however, discounted the importance of the 1086 oath, arguing that it must have been an unenforceable oath of fealty–not the enforceable oath of homage. See J.E.A. JOLLIFFE, THE CONSTITUTIONAL HISTORY OF MEDIEVAL ENGLAND 162 n.2 (4th ed. 1961).

9. BLACKSTONE, supra note 1, at [p.31]0. Blackstone states that scutage “appeared to have been levied for the first time in the fifth year of Henry the Second, on account of his expedition to Toulouse.” Later historians, however, share the view that the practice dates back at least to the time of Henry I, and that William the Conqueror may have used similar means for raising money to pay soldiers. Smail, Art of War, in I MEDIEVAL ENGLAND 138-139 (A. Poole ed. 1958).

10. STEPHENSON & MARCHAM, supra note 5, at 117-18.

11. BLACKSTONE, supra note 1, at [p.41]0. The pre-Conquest obligation had been 60 days; the Norman custom was 40 days. Sixty days apparently remained the norm in England for a time, until the barons, during the reign of Stephen, were able to force a reduction to 40 days. J.

SCHLIGHT, MONARCHS AND MERCENARIES 20 (1968).

12. THE BOKE OF NOBLESSE 73 (1792).

13. Assize of Arms, 27 Hen. 2 (1181); see BLACKSTONE, supra note 1 at [p.41]1; 1 Grose, supra note 3, at 9-11; B. LYON, A CONSTITUTIONAL AND LEGAL HISTORY OF MEDIEVAL ENGLAND 273 (2d ed. 1973).

14. See BAGLEY & ROWLEY, supra note 2, at 155-56. The legal status of a serf was barely above that of a slave. Serfs were bound to the land, subject to oppressive demands for their labors and productions, and had no right of appeal to the royal courts for any injuries inflicted by their overlords. See 1 M. BLOCH, FEUDAL SOCIETY 272-75 (1961); F. HEER, THE MEDIEVAL WORLD 22-34 (1962).

15. Y.B. 13 EDW. 1, ch. 6 (1285); BLACKSTONE, supra note 1, at [p.41]1. This statute apparently was necessitated because the practices mandated by the Assize of Arms of 1181 had grown lax. Its enactment confirmed the two tradition roles of the militia–the defense of the island and the maintenance of domestic law and order. J. MAHON, HISTORY OF THE MILITIA AND THE NATIONAL GUARD 7 (1983).

16. Y.B. 13 Edw. 1, ch. 6 (1285).

17. E. HEATH, THE GREY GOOSE WING 109 (1971).

18. R. HARDY, THE LONGBOW 128-29 (1977).

19. See 19 Hen. 7, ch. 4 (1503); 3 Hen. 8, ch. 13 (1511); 6 Hen. 8, ch. 13 (1514); 25 Hen. 8, ch. 17 (1533); 33 Hen. 8, ch. 6 (1541); 33 Hen. 8, ch. 6 (1541).

20. See generally J. BEELER, WARFARE IN FEUDAL EUROPE (1971); TUCKMAN, supra note 8. The English citizen army was not without its imitators. For instance, when the French attempted a similar experiment, seeking to organize 42,000 citizen soldiers, the result was a failure. A contemporary noted of them that “they were brought up in slavery, with no experience in handling weapons, and since they have passed suddenly from total servitude to freedom, sometimes they no longer want to obey their masters.” 1 R. LAFFONT, THE ANCIENT ART OF WARFARE 485 (1966).

21. C. OMAN, A HISTORY OF THE ART OF WAR IN THE SIXTEENTH CENTURY 288 (1937).

22. J. FORTESCUE, THE GOVERNANCE OF ENGLAND, OTHERWISE CALLED THE DIFFERENCE BETWEEN AN ABSOLUTE AND A LIMITED MONARCHY 114-15 (C. Plummer rev.

ed. 1885).

23. W. Raleigh, Maxims of State, in 8 THE WORKS OF SIR WALTER RALEIGH, KNT., NOW FIRST COLLECTED 22 (Oxford Univ. 1812).

24. L. BOYNTON, THE ELIZABETHAN MILITIA 8-9 (1967).

25. BLACKSTONE, supra note 1, at [p.41]2.

26. R. OLLARD, THIS WAR WITHOUT AN ENEMY 53 (1976).

27. P. HAYTHORNTHWAITE, THE ENGLISH CIVIL WAR 1642-1651, at 103 (1983).

28. See J.R. WESTERN, THE ENGLISH MILITIA IN THE EIGHTEENTH CENTURY 6 (1965).

29. ORDINANCES AND ACTS OF THE COMMONWEALTH AND PROTECTORATE 1317 (London 1911).

30. J.R. TANNER, ENGLISH CONSTITUTIONAL CONFLICTS OF THE SEVENTEENTH CENTURY 225 (1928). See generally L. SCHWOERER, NO STANDING ARMIES: THE ANTIARMY IDEOLOGY IN SEVENTEENTH CENTURY ENGLAND (1874).

31. 8 CALENDAR OF STATE PAPERS (DOMESTIC), Charles II, No. 188, at 150 (July 1660).

32. WESTERN, supra note 28, at 10 (1965). See generally D. WITCOMBE, CHARLES II AND THE CAVALIER HOUSE OF COMMONS 1663-1674 (1966).

33. See WESTERN, supra note 28, at 10-15.

34. 14 Car. 2, ch. 3 (1662).

35. Id. The act was somewhat expanded the following year. See 15 Car. 2, ch. 4 (1663).

36. 22 & 23 Car. 2, ch. 25 (1671). See generally P. MUNSCHE, GENTLEMEN AND POACHERS: THE ENGLISH GAME LAWS 1671-1831, AT 11-14 (1981). Those amendments were enacted at Parliament’s initiative, rather than at the initiative of Charles. See Malcolm, The Right of the People to Keep and Bear Arms: The Common Law Tradition, 10 Hastings Const. L.Q.

302 (1983).

37. See 68 CALENDAR OF STATE PAPERS (DOMESTIC), Charles II, No. 35, at 44 (Feb.

1662); 70 CALENDAR OF STATE PAPERS (DOMESTIC), Charles II, No. 13, at 83 (Mar. 1662); 83 CALENDAR OF STATE PAPERS (DOMESTIC), Charles II, No. 60, at 333 (Nov. 1663).

38. See C. BARNETT, BRITAIN’S ARMY 1503-1970 119 (1970); G. TREVELYAN, THE ENGLISH REVOLUTION 57 (1939); 2 CALENDAR OF STATE PAPERS (DOMESTIC), James II, No. 157, at 38.

39. 2 CALENDAR OF STATE PAPERS (DOMESTIC), James II, No. 1212, at 314 (Dec. 6, 1686).

40. See id., No. 1588, at 392 (Mar. 10, 1687); 3 id. No. 477, at 95 (Nov. 2, 1687).

41. See PAMPHLETS OF THE AMERICAN REVOLUTION (B. Bailyn ed. 1965); H.

COLBOURN, THE LAMP OF EXPERIENCE: WHIG HISTORY AND THE INTELLECTUAL ORIGINS OF THE AMERICAN REVOLUTION (1965); G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787 (1969); B. BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION (1967); Banning, Republican Ideology and the Triumph of the Constitution, 1789 to 1793, 31 Wm. & Mary Q. (3d Ser.) 167 (1974); Pocock, Machiavelli, Harrington and English Political Ideologies in the Eighteenth Century, 22 WM. & MARY Q. (3d Ser.) 549 (1965); Shalhope, Republicanism and Early American Historiography, 39 WM. & MARY Q. (3d Ser.) 334 (1982).

42. N. MACHIAVELLI, THE PRINCE AND THE DISCOURSES (MOD. LIBRARY ED. 1950) (1513).

43. See id. at 44-45.

44. See id. at 45.

45. N. MACHIAVELLI, THE ART OF WAR 21 (1521) (rev. ed. 1965).

46. Id. at 30.

47. Harrington’s major works were Oceana, published in 1656, and The Prerogative of Popular Government, published in 1658. See THE POLITICAL WORKS OF JAMES HARRINGTON 210, 389 (J.G.A. Pocock ed. 1977) (best current collection); see also C. HILL, THE CENTURY OF REVOLUTION 1603-1714 310 (1962).

48. THE POLITICAL WORKS OF JAMES HARRINGTON, supra note 47, at 442-43, 553- 54, 559; see also A. FLETCHER, A DISCOURSE OF GOVERNMENT WITH RELATION TO MILITIAS (London n.d.) (probably before 1737). Like Harrington, Fletcher shared Machiavelli’s admiration for the ancient republics of Rome and Sparta.

49. See TWO ENGLISH REPUBLICAN TRACTS (C. Robbins ed. 1969) (containing Neville’s work, Plato Redivus, Or a Dialogue Concerning Government). See generally HILL, supra note 47, at 223.

50. C. HILL, SOME INTELLECTUAL ORIGINS OF THE ENGLISH REVOLUTION 27 (1980) (citing Neville’s work, Plato Redivus, Or a Dialogue Concerning Government).

51. R. Molesworth, Foreword to F. HOTMAN, FRANCO GALLIA xxvi (R. Molesworth trans., London 1711).

52. M. Roberts, “The Military Revolution 1560-1660,” Inaugural Lecture delivered before the Queen’s University of Belfast 9-11 (copy in possession of authors).

53. BARNETT, supra note 38, at 124. The Mutiny Acts authorized the imposition of martial law on persons enlisted in the military. Absent the acts’ sanctions, a deserting soldier could be punished by a civil suit for breach of contract, or at most, prosecuted as a runaway apprentice. In addition, one who struck an officer might face misdemeanor assault charges in the civilian courts.

The post-1688 Mutiny Acts were generally of one year’s duration, ensuring that without annual parliamentary reauthorization, army discipline would be almost unattainable.

54. The events of 1688 did not represent an unqualified Whig victory. William’s policies favored neither party and those of his successor, Ann, strongly favored the Tories. Only with the accession of George I in 1714, did the Whigs attain a dominant hand. At the same time, for Whigs after 1688, the destruction of the government likely would have meant replacement of a generally unsympathetic Tory establishment with an oppressive and vengeful Jacobite one, and the loss of its gains during the Glorious Revolution.

55. Molesworth, supra note 51, at xxv.

56. C. ROSSITER, THE POLITICAL THOUGHT OF THE AMERICAN REVOLUTION 55 (1963); see C. ROBBINS, THE EIGHTEENTH CENTURY COMMONWEALTHMAN 100-102 (1959); L.

CRESS, CITIZENS IN ARMS: THE ARMY AND THE MILITIA IN AMERICAN SOCIETY TO THE WAR OF 1812 35 (1982). Whigism was predominant in the American colonies for at least the half-century preceding the American Revolution. Conversely, Toryism was revived in Britain in the second half of the eighteenth century, when the country was almost constantly at war. American Whig sentiment deepened in reaction to that revival.

57. Even under William, who relied heavily upon Whig ministers, “[t]he honeymoon did not last .

. . . [A] flood of publications reminded Englishmen of the ancient system they were supposedly reviving, including a Saxon-styled militia. Yet William believed that military common sense dictated a standing army.” COLBOURN, supra note 41, at 48. Under the Tory administrations that followed, these views became truly the “opposition theory [that] provided a model for an American version.” Banning, supra note 41, at 183.

58. 3 T. MACAULAY, THE HISTORY OF ENGLAND FROM THE ACCESSION OF JAMES THE SECOND 47 (1856).

59. As one British historian put it, It follows from all this that there is nothing rigid or static about the English Constitution. Not being set out or declared in any sacrosanct document nor hedged in by some special procedure of amendment, it can be changed or modified in any or every particular by ordinary process of legislation. It can be reformed in any part by an ordinary Act of Parliament assented to in the ordinary way. B. CHRIMES, ENGLISH CONSTITUTIONAL HISTORY 9 (2d ed. 1953).

60. I. R. POUND, JURISPRUDENCE § 43, at 484-86 (West 1959).

61. Id. at 486, 492.

62. Id. § 44, at 493-94.

63. Id. § 43, at 486.

64. G. TREVELYAN, THE ENGLISH REVOLUTION 179-80 (1979).

65. See 2 P. YORKE, LORD HARDWICKE, MISCELLANEOUS STATE PAPERS FROM 1501 to 1726, at 399 (London 1778). The debates were preserved in a pencilled outline of speeches. The actual notes were made by Lord Somers, who headed the committee charged with drafting the Lord’s version of the Declaration. They survived a 1752 fire at the Lincoln Inn, which destroyed most of the remainder of his papers.

66. Id. at 416.

67. Id. Boscawen added a personal element: “Acts of the Long Parliament Militia–Imprisoning without reason; disarming–Himself disarmed.” Id.

68. Id. at 407.

69. Id. at 414-17.

70. Journal of the House of Commons, Dec. 26, 1688, to Oct. 26, 1693, at 21- 22 (London 1742) (Library of Congress Rare Books Collection).

71. Id. at 25.

72. 1 W. & M., ch. 2 (1689).

73. 4 W. & M., ch. 2 (1692).

74. Malcolm, supra note 36, at 309 n.139.

75. Maryland’s colonial militia code of 1692 paralleled the 1662 Militia Act, but added a proviso that “no pressmaster or any persons whatsoever shall presume at any time to seize, press or carry away from the inhabitant resident in this province any arms or ammunition of any kind whatsoever . . . any law, statute or usage to the contrary notwithstanding.” 13 ARCHIVES OF MARYLAND: PROCEEDINGS AND ACTS OF THE GENERAL ASSEMBLY OF MARYLAND 557 (Apr. 1684 to June 1692) (W. Browne ed. 1894).

76. WESTERN, supra note 28, at 339.

77. BLACKSTONE, supra note 1, at [p.14]4.

78. T. HAYTER, THE ARMY AND THE CROWD IN MID-GEORGIAN ENGLAND 117 (1978).

79. “An Act to explain, amend, and reduce into one act of Parliament the Several Laws, now in being, Relating to the Raising and Training the Militia Within that part of Great Britain called England.” 20 Geo. 3, ch. 20, § 105 (1761).

80. THE NORTH BRITISH INTELLIGENCER 20 (Edinburgh 1776) (reporting speech by Lord Mayor of London attacking the Scottish Militia Bill) (Library of Congress Rare Books Collection).

81. P. MAIER, FROM RESISTANCE TO REVOLUTION 5 (1972). One historian has described the militia’s role in the development of our democratic institutions as follows: Aristocratic Whigs described the militia privates as “in general damn’d riff raff– dirty, mutinous and disaffected.” The militia described themselves as “composed of tradesmen and others, who earn their living by their industry . . . .” [A] check of one militia company roster against the published tax lists for Philadelphia reveals that of sixty-seven names, almost half (twenty-nine) appeared on no tax list between 1769 and 1781 . . . . For such men, participation in the militia was the first step in the transition from crowd activity to organized politics. Like the New Model Army of the English Civil War, the militia was a “school of political democracy.” E. FONER, TOM PAINE AND REVOLUTIONARY AMERICA 63-64 (1976).

82. Y.B. 5 Geo. 3, ch. 33 (1765).

83. Y.B. 5 Geo. 3, ch. 12 (1765).

84. Y.B. 14 Geo. 3, ch. 54 (1774).

85. H. MILES, REPUBLICATION OF THE PRINCIPLES AND ACTS OF THE REVOLUTION IN AMERICA 278 (1876).

86. DOCUMENTS ILLUSTRATIVE OF THE FORMATION OF THE UNION OF THE AMERICAN STATES 4-5 (C. Tansill ed. 1927).

87. 1 THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THE UNITED STATES 4 (B. Poore ed. 1877) [hereinafter FEDERAL AND STATE CONSTITUTIONS].

88. Id. at 816.

89. 2 id. at 1542.

90. The Virginia Bill of Rights traditionally has been ascribed to George Mason, based largely on Edmund Randolph’s recollection that Mason’s proposals “swallowed up the rest.” 1 B.

SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 247 (1971). Recent evidence suggests, however, that the relevant portion was added by the committee, albeit taken almost verbatim from Mason’s Fairfax Resolves. See H. MILLER, GEORGE MASON: GENTLEMAN REVOLUTIONARY 148 (1975). On the other hand, evidence also indicates that the Fairfax Resolves were more of a committee effort than has previously been supposed. See Sweig, A New-Found Washington Letter of 1774 and the Fairfax Resolves, 40 Wm. & Mary Q. (3d. Ser.) 283 (1983). Clearly, the body of the Virginia Constitution was actually a committee effort, based on submission of a number of plans. See 1 PAPERS OF THOMAS JEFFERSON 337 (J. BOYD ED. 1950).

91. 7 F. THORPE, THE FEDERAL AND STATE CONSTITUTIONS 3814 (1909).

92. J. MAIN, THE SOVEREIGN STATES 1775-1783, at 156-57 (1000 pounds of real estate to run for the lower house and twice that freehold to run for the upper house); PAPERS OF THOMAS JEFFERSON, supra note 90, at 366.

93. Hunt, James Madison and Religious Liberty, in PROCEEDINGS OF THE 17TH ANNUAL MEETING OF THE AMERICAN HISTORICAL SOCIETY 165-67 (1901). Madison later recollected that Mason had “inadvertently adopted” the word of “toleration.” PAPERS OF THOMAS JEFFERSON, supra note 90, at 250. This is consistent with the hypothesis that Mason differed from Jefferson and the Radicals not as much in values as in perspective. To Mason, the object was to establish a stable republic, which naturally would respect individual rights, while to Jefferson the object was to reserve rights and let the republic form within those reservations.

94. Y.B. 1 W. & M., ch. 18 (1689).

95. 31 WRITINGS OF GEORGE WASHINGTON 93 (J. Fitzpatrick ed. 1939).

96. Jefferson’s proposals would have divided State lands among persons owning less than fifty acres, would have provided these lands would be held in fee simple (a reflection of his opposition to fee tail, which was still permitted in Virginia), and would have barred transfer of State lands “until purchased of the Indian native proprietors.” PAPERS OF THOMAS JEFFERSON, supra note 90, at 362.

97. Id. at 344.

98. PA. CONST. § 6 (1776), reprinted in 5 Thorpe, supra note 91, at 3084; see also J.

SELSAM, THE PENNSYLVANIA CONVENTION OF 1776: A STUDY IN REVOLUTIONARY DEMOCRACY (1936); Gough, Notes on the Pennsylvania Revolutionaries of 1776, 96 PA. MAG.

89 (1972); Harding, Party Struggles Over the First Pennsylvania Constitution, in ANNUAL REPORT OF THE AMERICAN HISTORICAL ASSOCIATION 371-72 (1895). Most noticeably, Pennsylvania added rights to freedoms of speech and assembly. Virginia recognized–probably through oversight–only the right of freedom of the press. See SCHWARTZ, supra note 90, at 262-63.

99. J. ADAMS, DIARY AND AUTOBIOGRAPHY 391 (L. H. Butterfield ed. 1964).

100. PA. DECL. OF RIGHTS § 12 (1776), reprinted in 5 THORPE, supra note 91, at 3083. The Pennsylvania Constitution itself did provide for the militia, but contained businesslike statements, such as, all “freemen” shall be “trained and armed” under legislative direction. Pa. Const. § 5 (1776), reprinted in 5 THORPE, supra note 91, at 3084. No statement of the militia’s necessity or role in a republic appears in that constitution; instead, it contains a simple, practical provision for its organization.

101. MASS. CONST. pt. II, ch. 2, sec. 1, art. X, reprinted in 1 FEDERAL AND STATE CONSTITUTION, supra note 87, at 966.

102. “The people have a right to keep and to bear arms for the common defence.” MASS.

CONST. pt. I, art, XVII, reprinted in 3 THORPE, supra note 91, at 1892.

103. See J. Smith, Constitutional Right to Bear Arms 16-26 (1959) (unpublished manuscript).

104. 6 WORKS OF JOHN ADAMS, SECOND PRESIDENT OF THE U.S. 197 (C. Adams ed.

1851). Adams, however, was not a defender of the select militia concept: “The American states have owed their existence to the militia for more than two hundred years. A select militia will soon become a standing army . . . .” See Halbrook, The Right to Bear Arms in the First State Bills of Rights: Pennsylvania, North Carolina, Vermont, and Massachusetts, 10 VT.L.REV. 314 (1985) (citing Adams in 1823).

105. THE POPULAR SOURCES OF POLITICAL AUTHORITY: DOCUMENTS ON THE MASSACHUSETTS CONVENTION OF 1780, at 624 (O. & M. Handlin eds. 1966).

106. Clune, Joseph Hawley’s Criticism of the Constitution of Massachusetts, 3 SMITH C.

STUD. HIST. 15 (1917).

107. But see Higginbotham, The American Militia: A Traditional Institution with Revolutionary Responsibilities, in RECONSIDERATION ON THE REVOLUTIONARY WAR 95 (1978); J. SHY, A PEOPLE NUMEROUS AND ARMED 23-33 (1976); Shy, A New Look at the Colonial Militia, 20 WM. & MARY Q. 175-85 (1963).

108. B. DAVIS, THE COWPENS-GUILFORD COURTHOUSE CAMPAIGN 155-56 (1962).

109. Letter from George Washington to the President of Congress, Sept. 14, 1776, in 6 THE WRITINGS OF GEORGE WASHINGTON 106, 110 (1932).

110. THE FEDERALIST NO. 25, at 166 (A. Hamilton) (C. Rossiter ed. 1961).

111. 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, 326, 329, 509, 563, 616, 617, 633 (1911).

112. U.S. CONST. art. I, § 8, cl. 12.

113. Id.

114. Id. art. I, § 8, cl. 15.

115. Id. art. I, § 8, cl. 16.

116. Id.

117. Id. art. I, § 9, cls. 2, 3.

118. THE FEDERALIST NO. 26, at 173 (A. Hamilton) (Mentor ed. 1961).

119. THE FEDERALIST NO. 46, at 299 (J. Madison) (Mentor ed. 1961).

120. See generally L. CRESS, CITIZENS IN ARMS: THE ARMY AND THE MILITIA IN AMERICAN SOCIETY TO THE WAR OF 1812, at 780-92 (1982); J. MAHON, THE AMERICAN MILITIA, DECADE OF DECISION 1789-1800, AT 6-8 (1960).

121. 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 378 (M. Jenson ed. 1976).

122. 2 id. at 509.

123. R. LEE, LETTERS FROM THE FEDERAL FARMER TO THE REPUBLICAN 21, 124 (W.

Bennett ed. 1978).

124. J. MCMASTER & F. STONE, PENNSYLVANIA AND THE FEDERAL CONSTITUTION 1787-1788, AT 480 (1888).

125. D. ROBERTSON, DEBATES AND OTHER PROCEEDINGS OF THE CONVENTION OF VIRGINIA 270-71 (2d ed. Richmond 1805).

126. Id. at 274-75.

127. N. WEBSTER, AN EXAMINATION INTO THE LEADING PRINCIPLES OF THE FEDERAL CONSTITUTION PROPOSED BY THE LATE CONVENTION HELD AT PHILADELPHIA 43 (1787).

128. THE FEDERALIST No. 46, at 300 (J. Madison) (Mentor ed. 1961).

129. The later Fifth and Eighth Amendments were taken almost verbatim from the Pennsylvania wording. The Pennsylvania proposals also called for the recognitions of the freedoms of conscience, speech, and press, as well as the establishment of protection against warrants unsupported by evidence or not particularly describing the property to be seized. McMaster & Stone, supra note 124, at 461-63.

130. Id. at 462-63.

131. See E. DUMBAULD, THE BILL OF RIGHTS AND WHAT IT MEANS TODAY (1957).

132. ROBERTSON, supra note 125, at 270.

133. Id. at 274-75.

134. LEE, supra note 123, at 124.

135. Id. at 22.

136. See C. BOWEN, MIRACLE AT PHILADELPHIA 304 (1986).

137. 2 SCHWARTZ, supra note 90, at 765.

138. 1 id. at 842.

139. See id. at 912, 968. Of the two, only New York ratified. The North Carolina convention refused either to ratify or to repudiate the proposed constitution pending the inclusion of a bill of rights.

140. Id. at 764.

141. B. SCHWARTZ, THE LAW IN AMERICA 47 (1974).

142. 12 PAPERS OF JAMES MADISON 58 (R. Rutland & C. Hobson eds. 1977).

143. Id. at 272.

144. 1 JOURNAL OF CONGRESS 451 (J. Gales ed. 1789).

145. JOURNAL OF THE FIRST SESSION OF THE SENATE OF THE UNITED STATES 63, 64 (Washington 1820) (citing bill as passed by the House) [hereinafter JOURNAL].

146. Id. at 77.

147. U.S. CONST. amend. V.

148. Id. amend. III.

149. JOURNAL, supra note 145, at 71.

150. I THE FOUNDER’S CONSTITUTION 477 (P. Kurland & R. Lerner ed. 1987).

151. JOURNAL, supra note 145, at 71, 75.

152. At the Constitutional Convention, a delegate explained that “by organizing, the Committee meant proportioning the officers and men–by arming, specifying the kind, size, and calibre of arms–and by disciplining, prescribing the manual exercise, evolutions.” 5 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 344 (1836) (2d ed. 1966). In the Pennsylvania convention, James Wilson explained, “If a soldier drops his musket, and his companion, unfurnished with one, takes it up, it is of no service, because his cartridges do not fit it. By means of this system, a uniformity of arms and discipline will prevail throughout the United States.” 2 id. at 521.

153. Major plans included Steuben’s of 1784, Knox’s of 1786, and Washington’s of 1790.

Washington’s plan was submitted to Congress in January 1790. It then was drafted, debated, and–after a year and a half of work–enacted in emasculated form as the Militia Act of 1792. J.

PALMER, WASHINGTON, LINCOLN, WILSON: THREE WAR STATESMEN 87-89, 104-05, 107-123 (1930).

154. 1 MESSAGES AND PAPERS OF THE PRESIDENTS 57 (1897) [hereinafter MESSAGES].

155. Id. at 75.

156. Id. at 99.

157. Act of May 8, 1792, 1 Stat. 271.

158. MESSAGES, supra note 154, at 132, 176, 317, 333, 360.

159. Id. at 373.

160. CRESS, supra note 120, at 176. The United States technically continues to have a national “general” militia, consisting of all able-bodied males between the ages of 17 and 45 years of age who are not members of the National Guard or the Naval Militia. 10 U.S.C. § 311 (West Supp.1989). Likewise, state codes contain provisions establishing general “unorganized” militias.

See, e.g., VA. CODE ANN. § 44-1 (Michie Supp.1989). For practical purposes, however, these “organizations” have ceased to play any real role in national defense.

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