A WELL REGULATED MILITIA
A STUDY ON THE ORIGINS OF GUN CONTROL IN AMERICA
A Well-regulated Militia
THE ORIGINS OF THE SECOND AMENDMENT
The delegates who traveled to the Constitutional Convention in Philadelphia had good reasons to. be apprehensive about the future of the new United States. America's fledgling experiment in republican government faced a host of dangers from within and without. Shays's rebellion had frightened many of the nations leaders who feared that the young republic was drifting toward anarchy. Moreover, debt-ridden farmers were hardly the only group in America whose grievances might lead them to rebellion. Southern delegates to the Constitutional Convention, most of whom were planters, feared a different threat to civil order, enslaved Africans. External threats to the new nation also weighed heavily on the delegates' minds. The nation s borders needed to be rendered secure from potential Indian attack. British troops continued to be garrisoned along the frontier, and Spain was tightening its control of the Mississippi River and the port of New Orleans. Many Americans, particularly those who traveled to Philadelphia, had become convinced that the nation needed a strong national government that could deal with these multiple threats to its security If America was to survive these challenges, military reform was essential. The question of what to do about the militia was placed at the center of constitutional debate.
At the start of the American Revolution there had been widespread agreement that a well-regulated militia was the only form of defense compatible with republican liberty. The militia's mixed performance during the War for Independence caused many to lose faith in this ideal. Dissatisfaction with the militia was particularly keen among convention delegates. Many of them had served in the Continental Army's officers corps and had experienced the difficulties of waging a war against a well-trained professional fighting force firsthand. The Revolution had kindled the flame of nationalism in these officers. If America was to survive as a nation, it would have to forego reliance on the militia as the nation s primary means of defense and create a standing army. In addition to diminishing the nation s reliance on the militia, some nationalists sought to transform the militia itself. One group at the convention wished to transfer control of the militia from the states to the federal government. Other reformers wished to abandon a universal militia and replace it with a smaller select militia drawn from the ranks of an elite group of militiamen.1
Not everyone in attendance at the convention embraced this nationalist agenda. A small minority of the delegates feared tyranny more than anarchy. Opponents of the nationalist agenda feared that if state authority over the militia were undermined and the federal government were given the ability to raise a standing army, there would be no way to check the designs of ambitious and corrupt rulers. If history had taught any lesson to these Americans, it was that if power was unchecked, it inevitably led to despotism.
The movement to revise the Articles of Confederation and substitute in their place a new powerful national government dramatically altered the terms of debate over the meaning of the militia and the right to bear arms. The debate over including the right to bear arms in the first state constitutions had been relatively muted. No one doubted that the militias were creatures of the individual states. The only issue that prompted some minor protest was the failure to provide explicit protection for an individual right of self-defense. Most Americans were not troubled by this omission and were content to leave such a right a matter of common law. The dominant model that emerged from America's first great wave of constitution writing was the civic conception of the right to bear arms, which tied the exercise of this right to participation in the militia. The debate over the federal constitution would change all of this as the arguments over the meaning of the right to bear arms and the militia became embroiled in the larger dispute over federalism. Control of the militia became a crucial issue in defining the future balance of power between the states and the new national government. The issue of federalism had not been on the minds of Americans when they drafted their first state constitutions. The new constitution proposed by the Philadelphia convention forced Americans to ponder a different question: would the militia continue to be an agent of state power or would it become a tool of a powerful national government?
The development of a states rights theory of the militia and the right to bear arms occurred slowly as opponents of nationalism struggled to define a constitutional theory that would provide the states with an effective check on federal power. Building on the civic conception of the right to bear arms, proponents of states rights argued that an armed citizenry organized as a well-regulated militia controlled by the states could take up arms against the federal government and thereby act as the final check against government tyranny.
AND THE CONSTITUTION: THE GREAT
The Philadelphia convention began its work with a limited mandate to revise the Articles of Confederation. Led by delegates from Virginia who advocated abandoning the Articles of Confederation s model of a league of perpetual friendship, the convention accepted the Virginia Plan as the basis for a radical reworking of American constitutionalism. The new government would be a hybrid with both federal and national features. Under the new government the states would continue to be sovereign in most internal matters while the new national government would be supreme in areas such as foreign affairs. The problem of national defense figured prominently among the concerns that led the delegates to take this bold step.2
The new constitution that emerged from the convention s work was a compromise that included elements of the Virginia Plan and a host of other concessions and compromises that reflected the concerns of small states such as Connecticut and New Jersey and the interests of slaveholding states such as South Carolina. The convention s wide-ranging debates, conducted under a veil of secrecy, allowed the delegates to offer frank assessments on a variety of issues, including the relative merits of a standing army and a citizens' militia. Few delegates were as bold as South Carolina's Charles Pinckney who declared he had little "faith in the militia." James Madison stated the nationalist concern over the issue of control-of the militia when he argued that "the Discipline of the Militia is evidently a National Concern, and ought to be provided for in the National Constitution."3
The convention failed to resolve the thorny issue of who would constitute this new militia. Some delegates adhered to the traditional idea of a militia composed of the body of the people while others rejected this notion as impractical and inefficient. In place of a universal militia, some delegates pushed for a select militia drawn from a smaller body of citizens who would be better trained and equipped. A few delegates even rejected the idea of the militia entirely, arguing that America could no longer depend on citizen soldiers and ought to follow the European model and create a professional standing army. Rather than fix the meaning of the militia in the text of the Constitution, the convention decided to give the new congress the authority to determine the future composition of the militia.
Proponents of states' rights defended the traditional idea of the militia and opposed the growing demand for the creation of a powerful federal standing army. Elbridge Gerry of Massachusetts captured this view when he warned the delegates that "the people were jealous on this head." Gerry urged the delegates to emulate the many state constitutions and include a ban on standing armies. Without such a ban, the people would view the Constitution as a threat to their liberty. Gerry's qualms proved prescient: the failure to include such a prohibition would inspire a vigorous opposition once the conventions work was made public and the new Constitution was submitted to the states for ratification. Even among those sympathetic to the idea of strengthening the national government there was a recognition that the individual states would not easily give up control of their militias.4
Ultimately, the convention arrived at a compromise between the extreme nationalist and states' rights positions. The Constitution gave the federal government the authority "to call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions." The new national government was given the authority to organize, arm, and discipline the militia. The states would maintain some measure of control by retaining the power over the "appointment of the officers, and authority for training the militia according to the discipline prescribed." In so doing, the convention made the militia a creature of both the states and. the new national government.5
As the convention was finalizing the language of the new frame of government, Virginia's George Mason proposed adding a declaration of rights similar to the one he had helped draft for Virginia. The convention rejected Mason's suggestion. Some delegates believed a declaration of rights was unnecessary in a document of strictly limited powers, all of which had been specifically enumerated in the body of the Constitution. Others may have been too worn out to take up the issue and were confident the document could easily be amended at a future date if necessary The decision to brush off Masons suggestion was a serious miscalculation. Indeed, the absence of a bill of rights would emerge as one of the most serious objections to the Constitution.
Three days after the Constitutional Convention adjourned, the Continental Congress debated the merits of the new Constitution. Some congressional delegates criticized the convention for exceeding its authority and violating their specific instructions to revise the Articles of Confederation. Virginia's Richard Henry Lee suggested a list of possible changes, including a prohibition on "standing armies in times of peace" and a provision that would have required the consent of two-thirds of each house of Congress before such an army could be raised. Congress rejected Lee's suggestions and decided to send the original unamended Constitution to the states for ratification. The issue of the right to bear arms was not among Lee's short list of crucial amendments.6
The Philadelphia Convention's decision to submit the Constitution to popularly elected state ratification conventions ushered in one of the most wide-ranging public debates over politics and law in Western history. Less than a week after the Constitution appeared in print, a Philadelphian reported that "the new plan of government proposed by the Convention has made a bustle in the city and its vicinity." A commentator in Virginia noted that "the plan of a Government proposed to us by the Convention-—affords matter for conversation to every rank of beings from the Governor to the door keeper." Discussion of the new document's merits was not restricted to the pages of the nation's newspapers. The Constitution was discussed in town squares, on the steps of courthouses, and in taverns across America. In some cases, supporters and opponents of the Constitution took to the streets in celebration or protest. Supporters, who took the name Federalists, could count on the support of many of the nation's most esteemed political leaders, including George Washington, Alexander Hamilton, and James Madison. Opponents were saddled with the name Anti-Federalists, a name that ill suited them since they claimed to be the true supporters of a confederation whereas their opponents seemed to be intent on consolidating the union into a single powerful national government. Anti-Federalists also boasted an impressive lineup of spokesmen including George Mason, Patrick Henry, and Samuel Adams, as well as a host of powerful state politicians such as George Clinton, governor of New York, and William Findley, Pennsylvania's powerful backcountry spokesman.7
Opposition to the Constitution did not take long to coalesce. Masons fear that the absence of a bill of rights posed a threat to liberty was widely echoed in the press. Gerry's prediction that the absence of a ban on a standing army would become a common complaint also came to pass. Federalists wasted little time in formulating responses to each of these criticisms. One of the most forceful and influential replies was framed by the Pennsylvania Federalist James Wilson, an esteemed lawyer who had himself been a delegate to the Constitutional Convention. Delivered within a month of the Constitution s publication, Wilson s influential State House speech was reprinted in newspapers across America. In response to the first charge, Wilson affirmed that the new government was one of delegated authority alone; since the grant of power was of a limited nature, there was no need for a bill of rights. The people and the states retained all powers not delegated to the new government. The issue of a standing army was even simpler. No nation could long survive without an effective military, and there was little danger to be apprehended from such a force when it was controlled by a government in which the people enjoyed full representation.8
Recognizing the importance of Wilson s speech, Anti-Federalists subjected it to a barrage of attacks. One Anti-Federalist critic who mocked Wilsons aristocratic pretensions and styled himself 'A Democratic Federalist" invoked the memory of the brave minutemen of Concord and Lexington who had faced down the most powerful army in the world. He posed a simple question to his readers: "Is not a well regulated militia sufficient for every purpose of internal defense?" Another author, "Brutus," invoked the ideals of Roman virtue and recommended that the Constitution emulate the Virginia Declaration of Rights' provision on the militia. By invoking ancient republican stalwarts such as Brutus and valorizing America's own heroic minutemen, Anti-Federalists sought a noble pedigree for their critique of the Constitution. History painted a grim portrait of nations that abandoned the militia in favor of a standing army.9
Anti-Federalists did more than invoke well-known historical precedents. To these stock arguments, Anti-Federalists added a new idea that linked control of the militia to the problem of federalism. Without their militias to protect them, the states would be at the mercy of a strong government, which would soon consolidate all power within its orbit. No Anti-Federalist author was more effective at developing the logic of this states' rights argument than Luther Martin, an influential Maryland lawyer. Martin had participated in the Philadelphia Convention and had refused to sign the Constitution in protest. For Martin, state control of the militia was necessary to prevent encroachments by the national government on the rights of the states, which were the true guardians of citizens' rights. Martin went further than most Anti-Federalists in pursuing the logic of this states' rights theory, asserting that "the time may come when it shall be the duty of a State, in order to preserve itself from the oppression of the general government, to have recourse to the sword." For Martin, the militia was the final structural check in America's system of federalism.10
Federalist Noah Webster, the author of a popular guide to American spelling and the future author of the most important dictionary of American English, took on the Anti-Federalist argument directly. Writing as 'A Citizen of America," Webster advised Americans to "forget their apprehensions from a British standing army, quartered in America." While such fears had been justified during the Revolution, America had cast off the yoke of British tyranny and established a new republican system of government. Whereas the chief danger America had faced in 1776 came from a government too powerful, the threat to America now came from a government too weak. Webster reminded Americans that many of their own esteemed state constitutions did not bar standing armies; and that in those states that had included explicit prohibitions, the creation of such a force merely required the legislature's consent. Webster believed that Anti-Federalist demands for assurances about the viability of the militia reflected pre-Revolutionary habits of mind and were ill suited to post-Revolutionary American life.11
There was little danger to the militia from the Constitution. "Before a standing army can rule," Webster observed, "the people must be disarmed; as they are in almost every kingdom in Europe. The Supreme Power in America can not enforce unjust laws by the sword; because the whole body of the people are armed." It was precisely because the militia was such a central institution in American life that Americans had little to fear from a standing army. The militia would continue to serve as a bulwark against tyranny under the new government. In short, the new argument propounded by Anti-Federalists that the Constitution would disarm the state militias was absurd.12
The intensity of Anti-Federalist opposition forced other Federalists to join the fray and defend the Constitution. In the process of rebutting Anti-Federalist criticism, the supporters of the Constitution were forced to refine their ideas and in some cases concede some ground to their opponents. The debate over the militia was an excellent illustration of the dynamic quality of ratification. Although many Federalists had expressed grave reservations about the militia in private, their public statements reassured Americans that this institution would continue to serve as a bulwark of liberty. The appearance ofThe Federalist, a set of newspaper essays authored by John Jay, Alexander Hamilton, and James Madison, marked a new level of sophistication in public debate on the Constitution. The Federalist not only rebutted Anti-Federalist criticisms of the Constitution, but it eloquently defended the idea of a powerful government that would strengthen liberty, not threaten it. Adopting the pen name Publius, a hero of the Roman Republic, the authors offered the most philosophical meditation on government published during ratification. The essays first appeared serially in newspapers across America and were eventually gathered together into a book as the ratification struggle was winding down.13
The authors of The Federalist accepted that the new government was a novel mixture of federal and national elements. This hybrid nature was evidenced in the way control of the militia was divided up between the states and the central government. Publius reminded readers that it was unwise to put too great a reliance on the militia, a misplaced faith that nearly "lost us our independence." The performance of the militia in the Revolution demonstrated that "the great body of yeomanry" were unwilling to submit to the level of regulation necessary "to acquire the degree of perfection which would entitle them to the character of a well regulated militia." Experience had demonstrated that most Americans were reluctant to sacrifice their individual liberty to the collective good and take on the burdens necessary to create an effective militia. Given this reality, Publius concluded that it was best to leave the future composition of the militia up to Congress, though he hoped that Congress would recognize the need to create an elite group of select militia drawn from the ranks of those citizens with the greatest aptitude for military exercises.14
Having disarmed the Anti-Federalists' argument that the militia was the best defense for a republic, Publius challenged their suggestion that the new government's authority over the militia posed a threat to the states or citizens. Any danger was effectively neutralized by the structure of checks and balances in the new frame of government. Publius acknowledged that if all of the many safeguards built into the new system failed, the final check on tyranny would be "that original right of self defense which is paramount to all positive forms of government." Americans would not lose the natural right of revolution that always existed as the ultimate check on tyranny. Publius cleverly used this extreme situation, a dissolution of government and a return to a state of nature, to show just how unlikely such a turn of affairs would be under the new Constitution.15
Although it is hard to imagine Publius or any other Federalist conceding a right of the states to take up arms against the federal government at the start of the ratification battle, the persistent criticism of the Anti-Federalists did force Federalists to adapt their arguments to deflect those of their opponents on this issue. Following the same rhetorical strategy he had used to demonstrate that the Constitution would not deprive Americans of the natural right of revolution, Publius cast such an occurrence as an extreme situation, an option of last resort that was almost unthinkable. In the unlikely event that this radical option had to be exercised, the Constitution would pose no barrier to this ultimate check on despotism. Yet, even in this unlikely scenario, Publius took great pains to point out that if this nightmare state of affairs presented itself and the nation were plunged into a civil war, then the exercise' of the right of revolution would have to proceed in an orderly manner to enjoy legitimacy and have any chance of achieving its goal of restoring liberty and order. Thus, while Publius conceded that in extreme situations the states might have recourse to use their militias against the national government in the defense of liberty, he denied that individuals or localities were ever justified in a resort to arms. Indeed, as a practical matter the notion of individual or local resistance was likely to lead to disaster. To illustrate this point Publius contrasted the effectiveness of the orderly and coordinated actions of the militias under state authority with the futile efforts of individuals and localities that might "rush tumultuously to arms, without concert, without system, without resources." A well-regulated militia, he reminded his readers, was not an armed mob.16
While Publius briefly considered the cataclysmic turn of events that could lead to the dissolution of government, he confidently asserted that this was a "phantom" conjured up by the most paranoid opponents of the Constitution. Building on a line of argument developed by Webster and other Federalists, Publius boasted that the very strength of the militia in America meant that a despotic federal government could never tyrannize the people. America, he reminded his readers, was unlike any other nation in the world because it boasted "a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence." The existence of a well-armed population organized into state militias guaranteed that America would never succumb to tyranny to counter the radical states' rights theory of the militia championed by Anti-Federalists such as Luther Martin, Publius offered his own more limited and measured defense of the role of the state militias as a check on the power of the federal government.17
THE RIGHT TO BEAR ARMS BECOMES AN
ISSUE: "THE DISSENT OF THE MINORITY"
AND THE FEDERALIST RESPONSE
Although the issue of a standing army and the vexing question of federal control of the militia emerged as contentious issues from the outset, demands for some type of explicit protection for the right to bear arms did not figure prominently early in the ratification process. The first proposal for amendments drafted by Richard Henry Lee in the Confederation Congress had not even mentioned the right to bear arms. Nor had James Wilson bothered to address this concern in his widely reprinted State House speech. The right to bear arms did not emerge as an issue until the end of December at the very close of the Pennsylvania state ratification convention when delegate Robert Whitehill presented a list of fifteen recommended amendments to the delegates. Echoing earlier criticism of the Constitution, the list insisted on a ban on a standing army and a restoration of state control of the militia. In addition to these frequently voiced concerns, Whitehill added a new demand: an affirmation of the right to bear arms. The Federalist-dominated convention dismissed these demands, and the convention accepted the new constitution without any qualifications. Still seething over their defeat, the Anti-Federalist minority resolved to take their appeal directly to the people. Whitehill's list of amendments was hastily assembled and appended to a somewhat rambling critique of the Constitution and published as "The Dissent of the Pennsylvania Minority." The Dissent asserted the following claims:
7. That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purposes of killing game; and no law should be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and
as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers.
8. The inhabitants of the several states shall have the liberty to fowl and hunt in seasonable times.
11. That the power of organizing, arming, and disciplining the militia (the manner of disciplining the militia to be prescribed by Congress) remain with the individual states, and that Congress shall not have authority to call or march any of the militia out of their own state, without the consent of such state and for such length of time only as such state shall agree.
Whitehill's seventh proposal cobbled together two different provisions from the Pennsylvania state constitution, a right to bear arms and a right to hunt. Curiously, the Dissent repeated the right to hunt twice in its list, a fact that testifies to the essay's slapdash draftsmanship. The term bear arms was traditionally approached as a legal term of art that clearly implied arms used for public defense. As was sometimes true of technical legal concepts, the term was occasionally used more loosely in popular discourse, and the Dissent's usage of the term bear arms in the context of hunting fit this latter nonstandard usage. Although other writers picked up on the Dissent's call for explicit protection for the right to bear arms, no other author employed its unique formulation of a right to hunt or bear arms for nonmilitary purposes.18
Additional evidence about how the Dissent was read at the time may be found in Federalist responses to it. While Anti-Federalist concern over me future of the right to bear arms as part of a well regulated militia prompted some comment, Federalists did not feel a need to devote much intellectual energy to refuting the suggestion that the constitution would deprive citizens of a right to hunt or use guns for civilian purposes.
One vocal critic of the Dissent, Tench Coxe, authored two separate attacks on its arguments. Coxe focused his attack on the Dissent's exaggerated fears about threats to the militia. As was true for all Federalists, Coxe viewed such alarmist ramblings as entirely unfounded. "Who are these militia?" Coxe asked readers. "Are they not ourselves?" In his view, the strength of the militia in America meant that there was no danger to be apprehended from the Constitution's authority over it. In essence Coxe argued that the civic conception of arms bearing was so deeply embedded in American culture that there was little to fear from the Constitution s power over the militia. Coxe went further, declaring that Congress had no power to disarm the militia because "their swords, and every other terrible implement of the soldier, are the birthright of an American." The right to bear arms was, in Coxe's view, clearly intended to preserve a right to keep and bear military weapons intended for militia service. As was true of other Federalist authors who responded to the Dissent, Coxe did not take the problem of hunting or civilian firearms use as a serious issue meriting any attention.19
THAT EVERY MAN MAY BE ARMED: THE VIRGINIA RATIFICATION DEBATES
Although the danger of a standing army and the threat to the militia were discussed in virtually all of the state ratification conventions, the issue figured most prominently in Virginia. The group of delegates who assembled in Richmond included an impressive cast. The Anti-Federalist forces were led by George Mason and Patrick Henry. The Federalists had James Madison and the future chief justice of the Supreme Court, John Marshall, to plead their case. Eight states had already ratified the Constitution when Virginia debated its merits. If the Anti-Federalists were victorious, they might yet secure substantial amendments.
Virginians had experienced the danger of disarmament firsthand during the Revolution. Lord Dunmore's attempt to seize the colony's gunpowder and vandalize the militia's muskets more than a decade earlier left an indelible imprint on the minds of leading opponents of the Constitution such as Patrick Henry and George Mason.20
Virginia Anti-Federalists were equally mindful that the disarmament of the militia might be achieved by less bold measures than those chosen by Lord Dunmore. The new powerful federal government created by the Constitution could accomplish the same goal by simply failing to act. Refusing to enact effective regulations and neglecting to supply the militia with arms were in some ways even more insidious since the process of slow disarmament could be accomplished by more stealthy means. "The great object is, that every man be armed," Henry lamented, but experience had taught that while "our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case." The primary responsibility of arming and disciplining the militia, Henry argued, belonged to the states and should only be exercised by the federal government when states failed to fulfill their obligations.21
In response to these concerns, Federalists picked up an argument that had been made elsewhere. The states and the people would be represented in Congress, which would be responsible for enacting laws governing the militia and would not act against the people's own interests. The states would continue to train the militia according to the rules established by Congress, a representative body elected by the people of the states. Madison also disputed the claim that the militia had been effectively nationalized. "The power of arming the militia," Madison asserted, was "concurrent, and not exclusive."22
As far as the danger of a standing army was concerned, Federalists maintained that Congress would tightly control such an army through the power of the purse. Madison captured the view of many Federalists when he noted the greatest threat to civil liberty came not from the national government but from "internal dissensions." Madison confidently asserted that under the new constitution the militia would not only continue to serve the vital function of providing,, states with a means to deal with riots and insurrections but would also allow the states to deal more effectively with internal conflict by drawing on the resources of other states and, if necessary, the federal government. When Patrick Henry warned that Virginians might be robbed of the means to deal with slave rebellions, Federalist George Nicholas observed that the new constitution provided additional security for slave owners by making it "the duty of the General government to aid them with the strength of the Union."23
Anti-Federalists fought valiantly and doggedly, but when the final vote was tallied, the Federalists emerged victorious. Virginia Anti-Federalists failed to secure prior amendments to the Constitution. Anti-Federalists did, however, manage to obtain assurances that a list of recommended amendments would be taken up by the First Congress. Among the many concerns listed in these proposed amendments were demands for assurances about the militia and the right to bear arms. In fact, all of the provisions suggested by the Virginia Convention focused on the militia. No one stepped forward to suggest that the Constitution ought to include something similar to Jefferson's failed proposal for the Virginia Declaration of Rights on keeping arms. Nor did anything like the Dissent of the Pennsylvania Minority's demand for a right to hunt figure in the recommended amendments proposed by the Virginia Convention. The focus of the debate in Virginia was on the militia, not a private right to keep arms for civilian use.24
THE PEOPLE IN ARMS: BACKCOUNTRY VIOLENCE AND THE CHALLENGE OF POPULAR RADICALISM
Although the rhetoric of ratification had been intense, the debate over the merits of the Constitution had been on the whole remarkably peaceful. Most Anti-Federalists accepted defeat gracefully and turned their attention to securing seats in the upcoming elections for the First Congress, where they could work on securing amendments. A small but vocal minority however, refused to concede defeat or accept the legitimacy of the Constitution. Opposition to the Constitution in backcountry Pennsylvania, the Carolinas, and New England had always been intense. The Carlisle Riot in western Pennsylvania provides a rare glimpse into how the militia and the right to bear arms were understood by the most radical voices among the Anti-Federalists. The radical potential latent in the militia that emerged during Shays's Rebellion once again surfaced as western Pennsylvanians organized themselves and prepared to oppose the federal government with force of arms if necessary.25
Violence in Carlisle erupted when local Federalists decided to celebrate Pennsylvania's adoption of the Constitution in late November of 1787. When Anti-Federalists encountered celebrants in the streets of Carlisle, a harsh exchange of words between the two sides quickly escalated into a small riot. Several of the Anti-Federalists responsible for instigating this altercation were jailed. The imprisoned rioters refused bail, expressing their contempt for lawyers and state courts alike. Instead, they placed their faith in the local militia who acted without state authority, marched on the jail, and liberated the rioters. Carlisle Anti-Federalists believed that local communities might assemble in arms and oppose tyranny. The imprisonment of the rioters provided a pretext for asserting this right. The assertion of this right did not require a formal legal process and was not subject to the approval of either the state or the federal government. For Federalists and many Anti-Federalists, including the signers of the "Dissent of the Minority," the armed body that liberated the prisoners was not a militia, but little more than a mob.
The actions of the Carlisle militia, like those of Daniel Shays and his followers, rejected the states' rights theory of the militia that mainstream Anti-Federalists had championed throughout ratification. ,' AK The Carlisle rioters cared little for states' rights and instead championed a more radical populist conception of democracy, rooted in the will of the local conrmunity, not the states. To these plebeian populists, events in Carlisle, including the release of the prisoners from jail, vindicated their radical localist ideology.26
William Petrikin, one of the rioters, became a spokesman for radical Anti-Federalists in Carlisle. He accused Federalists of trying to disarm "farmers, mechanics, [and] labourers." Rather than accept defeat, Petrikin advocated armed resistance.27
Carlisle was hardly the only place in the Pennsylvania backcountry where radical ideas found a receptive audience. As one anonymous author noted, "the counties of Cumberland, Dauphine, and Franklin, appear to take the lead, and have been long since repairing and cleaning their arms, and every young fellow who is able to do it, is providing himself with a rifle or musket, and ammunition." Echoing Petrikin's rhetoric, the author of this essay attacked the Constitution, charging that "the lawyers, &c." had "precipitated with such fraud and deception the new system of government upon us." The conspiracy against the people was destined to fail because the Federalists "did not recollect, that the militia had arms." Plebeian populists put their faith in an armed population.and did not flinch from the prospect of armed resistance. "A civil war is dreadful, but a little blood spilt now, will perhaps prevent much more hereafter." For those who followed Petrikin's advice, the right to bear arms was a genuinely insurrectionary right of revolution. Similar ideas were articulated in other parts of the new nation. In the pro-Shaysite regions of backcountry Massachusetts, one enthusiastic Anti-Federalist attacked the Constitution as a tool of "great men & lawyers." The Constitution was part of a Federalist conspiracy in which the "people will be disarmed" and "a standing army will be irrrmediately formed."28
Ironically, the rumblings in the backcountry actually facilitated the acceptance of the Constitution by demonstrating that continued opposition would only lead to instability and mob rule. Rather than inspire moderate Anti-Federalists to join with them in an ongoing struggle against the Constitution, popular radicalism drove mainstream Anti-Federalists toward an accommodation with Federalists. The irony of popular radicalism is evident in the outcome of the Harrisburg Convention, a meeting of delegates from Pennsylvania in late September 1788 that took up the radical Anti-Federalist demand for a new constitutional convention. The meeting included Robert Whitehill, original author of the list of amendments that had formed the core of the "Dissent of the Minority." The meeting also attracted the fiery delegate from Carlisle, William Petrikin. The delegates at Harrisburg betrayed Petrikin's hopes for the emergence of an anti-Constitution movement. Instead, they focused on the practical problems of winning seats in the First Congress and creating a viable list of amendments that would accomplish their states' rights agenda. The list of recommended amendments produced by the Harrisburg delegates focused squarely on the issue of states' rights and included a ban on a standing army and a restoration of state control over the militia. It made no mention of the right to bear arms or the right to hunt. The fear that the federal government might use its power over the militia to disarm the states prompted two other novel proposals: a ban on the use of martial law to coerce the militia except during time of war or rebellion and time limits on federal use of the militia, a provision that prevented the potential use of the militia of one state against that of another. The prospect that the Harrisburg Convention might create the core of a new anti-Constitution movement collapsed. Reform of the Constitution would proceed in an orderly legal fashion through the amendment process, which would focus on the Anti-Federalist states' rights agenda. Petrikin saw the exclusive focus on states' rights as a betrayal, and he advised backcountry residents to continue to train as local militia units and counseled that they be prepared to defend popular liberty by arms against the potential threat the new federal government posed.29
The popular constitutionalism of the Carlisle Rioters set them apart from the nationalist-minded Federalists and states'-rights-oriented Anti-Federalists. While elites on both sides of the constitutional struggle were divided on many issues, leading Anti-Federalists and Federalists were in accord on one thing: the conception of the militia defended by Petrikin and other radicals led to Shaysism and anarchy. Amendment, not armed resistance, was the appropriate remedy to any lingering problems with the Constitution.
THE BILL OF RIGHTS AND THE ORIGINS OF THE SECOND AMENDMENT
While Federalists had achieved an impressive victory over their opponents during ratification, the presence of lingering Anti-Federalist anxiety over the Constitution posed a potential threat to the new government. Federalists had blocked efforts to make ratification conditional on prior amendments. The most politically savvy Federalists realized that amendments were necessary to assuage moderate Anti-Federalists and help broaden support for the Constitution. The job of digesting the many proposals for amendments made by the various state ratification conventions and stewarding them through the First Federal Congress fell to James Madison.30
Madison focused his attention on the official recommendations that had been made by the ratification conventions of Virginia, Massachusetts, New York, Maryland, and New Hampshire. He did not acknowledge the more strident calls for a return of authority to the states found in texts such as the "Dissent of the Minority" All five state conventions had recommended that the Constitution include a prohibition on standing armies in peacetime; four demanded some type of explicit protection for the right to bear arms; two affirmed the principle of state control of the militia; and two proposed limits on the use of the militia outside the state. The right to keep or use firearms arms outside the context of the militia, including the right to hunt recommended by the "Dissent of the Minority," did not appear on Madison s comprehensive list of possible amendments.31
One of the most interesting and novel proposals on Madison s list was one suggested by New Hampshire that recommended an amendment that would have limited congressional authority to "disarm any citizen, unless such as are or have been in rebellion." Decisions about which citizens might be disarmed were something properly left to the states. Many had used their police powers to impose loyalty oaths and enact other types of firearms regulations. New Hampshire's provision would have limited the federal government from enacting similar oaths that might disarm the people. The framing of the prohibition suggested that the primary concern was federalism, not a right to protect the use of guns for private purposes. Had New Hampshire sought such a personal right, the state could have easily followed the model provided by the Pennsylvania Dissent and included a provision on hunting.32
Madison's initial formulation of the right to bear arms read:
The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.33
Some Federalists were dismissive of the proposed amendments, including the provision on bearing arms. Fisher Ames was particularly scathing in his denunciation of this provision, noting that he could barely contain his laughter when contemplating the absurdity of this concern. While some Federalists ridiculed the amendments, the most ardent Anti-Federalists were equally dismissive of the project for its failure to curtail federal power. One prominent Anti-Federalist described them as being "like a tub thrown out to a whale," a mere diversion.34
Madison had hoped simply to weave the various amendments into the body of the Constitution. He intended to place the right to bear arms in Article I, Section 9, next to other restraints on federal power. Congress rejected this approach and decided instead to append a series of amendments after the text of the Constitution. The House revised Madison s original formulation, placing the affirmation of a well-regulated militia before the right to keep and bear arms. The decision to recast the language had enormous constitutional significance. Preambles, the introductory clauses of statutes, were commonly understood by eighteenth-century lawyers to hold the key to the "design and meaning" of a law. Framing the right to bear arms as a corollary of a preamble focusing on the need for a well-regulated militia clearly signaled that the purpose of the amendment was to protect the militia. The House also added a clause describing the militia as "composed of the body of the people" and changed a semicolon to a comma, an editorial decision that linked the clauses containing the militia and the right of the people more closely.35
Further evidence on the military focus of the debate in the House is provided by the debate over how to treat religious pacifists. Elbridge Gerry, one of the few Anti-Federalists elected to the House, objected to the way in which the clause about conscientious objection status might allow the new government to disarm state militias. "This clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms." Gerry did not, however, use this opportunity to bemoan the threat this power might pose to the rights of individuals to use guns outside militia service. Gerry warned that "whenever government means to invade the rights and liberties of the people, they always attempt to destroy the militia." Gerry evoked memories of British efforts to disarm the colonists, a set of policies aimed at the militia. The British had "used every means in their power to prevent the establishment of an effective militia to the eastward." The inclusion of an amendment protecting the right to keep and bear arms was designed to prevent future efforts at disarming the militia.36
Records of the Senate's deliberations do not survive, so it is more difficult to sort out how the debate over the right to bear arms played out in that body. Federalists, particularly the more nationalist minded among them, were eager to reduce state control and if possible nationalize as many of the militia's functions as was politically feasible. The primary issue in the Senate was federalism: who would have control of the militia? The Senate struck out the phrase that described the militia as composed of the body of the people, a move that restored Madison's original formulation and gave Congress authority to determine who in the future would be included within the ranks of the militia. Additional evidence that the Senate's main focus was on control of the militia may be found in an unsuccessful attempt to include a prohibition on peacetime standing armies, a suggestion the Senate also rejected. Anti-Federalists in the Senate scored one important victory when they deleted language affirming that the purpose of the militia was to provide for the common defense. For those who feared federal power, inclusion of such language would have seemed ominous. If placed in the Bill of Rights this phrase might have provided unscrupulous leaders with a pretext for prohibiting the militia from defending the states or localities from external or internal threats. This phrasing would have struck both of the ardent states' rights senators from Virginia as a- dangerous concession to the federal government. Virginians were especially worried that federal control of the militia would threaten their state's ability to put down insurrections, a particularly frightening prospect for a state with a large slave population: The militia existed for local, state, and common national defense.37
One of the few surviving letters describing the character of the Senate debate over this issue confirms the centrality of federalism to the discussion over the wording of the amendment. Virginian John Randolph wrote to St. George Tucker, the eminent Virginia jurist, inforrning him that a faction in "the Senate were for not allowing the militia arms." Randolph explained his reasoning to Tucker, noting that Federalists feared an armed citizenry who might "stop their full Career to Tyranny & Oppression." A well-armed militia controlled by the states was necessary to provide the states the ultimate check on potential federal despotism.38
The Senate edited the House list of seventeen provisions, paring it down to twelve provisions, which were then submitted to the states for ratification. When the states failed to ratify the first two amendments, which dealt with apportionment of representatives and congressional salaries, the Fourth Article became the Second Amendment. The final text read: "a well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed."39
Public reaction to the proposed Bill of Rights is difficult to gauge. During the debate over ratification of the Constitution, the press teemed with essays extolling and denouncing the new government.
The drama within Congress over the Bill of Rights, however, did not garner much press attention. One of the few essays to address Madison s proposed amendments was authored by Tench Cose, who described his effort to Madison as slapdash. "I have therefore taken an hour from my present Engagement," Coxe confided to Madison, and "thrown together a few remarks upon the first part of the Resolutions." The essay was not widely reprinted and prompted no commentary by contemporaries, two facts that suggest that it did not have much of an impact at the time. Writing about Madison s initial proposal, the version without the preamble asserting the need for a well-regulated militia, Coxe asserted that the proposed Bill of Rights affirmed "the right of the people to keep and bear their private arms." Using language consistent with his earlier essays attacking the "Dissent of the Minority," Coxe argued that citizens would not be deprived the "implements of the soldier" but would continue to enjoy the right to keep and bear those arms needed to meet their civic responsibility to participate in a well-regulated militia.40
It is difficult to know with precision how the Second Amendment was understood by the vast majority of Americans at the time it was proposed. In all likelihood there was no single original understanding that united Federalists and Anti-Federalists. The most ardent Anti-Federalists were bitterly disappointed by the amendments proposed by Congress. One of the most vociferous critics of the Constitution, Samuel Bryan (using the pen name "Centinel"), lamented the ineffectual nature of these changes, which did not restrain "the absolute command vested by other sections in Congress over the militia." For other champions of states' rights the language of the Second Amendment provided little solace. For supporters of states' rights the Bill of Rights was inadequate. Anti-Federalist Thomas Tudor Tucker confessed his disappointment with the final form of the amendments that emerged from Congress, which was "calculated merely to amuse, or rather to deceive." Not every former opponent of the Constitution was so negative. George Mason confessed that he had "received much satisfaction from the Amendments to the Federal constitution, which have lately passed the House of Representatives."41
If one moves below the ranks of the elites who shaped the debate in Congress and the individual state houses, there are tantalizing suggestions that the ideas that animated popular Anti-Federalist opposition in Pennsylvania had taken root elsewhere. Writing from the Maine frontier to his Federalist Congressman George Thatcher, Anti-Federalist Samuel Nasson expressed his desire that the amendments Congress was contemplating would protect "the right to keep Arms for Common and Extraordinary Occations such as to secure ourselves against the Wild Beast and also to amuse us by fowling and for our Defense against a Common Enemy." Nasson believed in the civic responsibility to bear arms for common defense, and he also articulated a desire to see some type of explicit protection for keeping guns for personal use. Unfortunately for Nasson and others who shared his point of view, the constitutional views of Harvard-educated Federalists such as Thatcher shared little with the perspective of an untutored Anti-Federalist from the Maine frontier. Nasson s polite inquiries fell on unresponsive ears.42
Others within the ranks of the former Anti-Federalists were not content to simply write their congressmen and adopted a more militant posture. The outspoken populist from Carlisle, William Petrikin, captured these festering resentments when he wrote, "We are determined to die hard." "Our Volunteer company," he boasted "is very large, well armed and Equipped, parades often and exercises very well." Rather than seek peaceful reform through the system, Petrikin and other populist radicals in the backcountry prepared themselves for armed resistance to the new government. Charles Pettit, a prominent Pennsylvania Anti-Federalist, confessed his own fears that popular radicalism posed a serious threat to the future of the young republic. The existence of these pockets of popular discontent encouraged leading Anti-Federalists to accept the amended Constitution.43
The adoption of the Second Amendment did not settle the meaning of the right to bear arms, nor did it end the widening disagreement over the appropriate role of the militia. Rather than establish a single monolithic original understanding, the bitter and divisive debate over ratification gave rise to several competing interpretations of the Second Amendment's meaning and its role in the federal system. The dominant view of the Second Amendment reflected its origins in the various state arms bearing provisions. According to this view, the right to keep and bear arms was a civic right inextricably linked to the public responsibility to participate in a well-regulated militia. Although they had been defeated at virtually every turn, Anti-Federalists clung tenaciously to their states' rights view of the Second Amendment as providing the foundation for state resistance to the federal government.
CONGRESSIONAL DEBATE OVER THE MILITIA
The framers of the Second Amendment left open the question of the future composition of the militia. It was up to Congress to decide if the militia would continue to be drawn from the entire white male population or some smaller select group. Anti-Federalists feared that Federalists were committed to abolishing the universal militia and creating a select one. To blunt Anti-Federalist criticism, a number of Federalists offered fulsome praise of a well-regulated militia. Charles Nisbet, president of Dickinson College, observed somewhat cynically that "our leaders flatter the People by declaiming against Standing Armies, and pretending to believe that the Militia is the best Security of a Nation," but "they are not in earnest." Federalist disenchantment with the militia was succinctly captured by Governor Morris, another participant in the Philadelphia Convention, when he confessed that "to rely on militia was to lean on a broken reed."44
Given their disappointment with the militia's performance, it is hardly surprising that Federalists would press ahead with their desire for military reform, including changes to the militia. President George Washington, who had been a witness to the problems of utilizing the militia against professional troops, urged Congress to enact legislation to reform the militia almost immediately upon assuming office in 1789. Congress appointed a committee, but a host of other pressing matters delayed action until Congress convened in 1790. Washington worked closely with Secretary, of War Henry Knox to draft a comprehensive plan for militia reform. Introduced on January 21,1790, the Knox plan used a system of classification that would divide the militia into an "advanced corps," a "main corps," and a "reserved corps." The Knox plan would have effectively nationalized the militia. The federal government was to determine the organization of units, train the militia, and take charge of almost every detail apart from declaring exemptions and appointing officers, powers the Constitution expressly reserved for the states.45
Knox's plan provoked a storm of protest, prompting young New Yorker De Witt Clinton to remark that it was both "absurd and impolitic." The enormous cost of the plan led some to decry its extravagance while others felt the classification system would unduly burden urban and manufacturing interests, which could ill afford to have such a large percentage of potential apprentices plucked away for extensive military training. The plan was resoundingly defeated. Congress temporarily put aside the issue of the militia while it debated Hamilton s scheme for funding state debts and creating a national bank. Although there was broad agreement on the need for militia reform, there was little consensus on how to achieve that goal. As would be true for virtually every issue debated in the First Congress, the issue of the militia was hopelessly entangled with the larger struggle between those who sought to endow the new federal government with greater power and those who continued to believe that individual state governments had to be protected if liberty were to survive.46
When American forces were decisively defeated by Native Americans in the Ohio Territory in 1790, the issue of militia reform took on a new sense of urgency. New Jersey Federalist Elias Boudinot attacked a universal militia and declared that he "disapproved of making a soldier of every man between 18 and 45." James Jackson of Georgia defended the ideal of a more inclusive militia, noting, "The people of America would be highly displeased at being debarred the privilege of carrying arms." He argued further that "every man in a republic ought to be a soldier-—-if it was only to prevent the introduction of that greatest of all evils, a standing army." Jackson cast the right to bear arms as a civic obligation, describing it as one of the "most important duties we owe society.47
The continuing importance of the civic conception of arms bearing as an obligation emerged again during the vigorous debate over the issue of religious exemptions from militia service. The plight of the Quakers prompted extensive commentary Some in Congress worried that if Quakers were given exemptions "the whole nation" would "turn quakers" and leave the nation defenseless. Others scoffed at the notion that Americans would abandon their obligations by feigning false religiosity. A middle position was staked out by those who favored exempting the religiously scrupulous from bearing arms by allowing them to pay a fee instead. This compromise satisfied no one since Quakers would still be taxed for military preparation they opposed. Finally there were others who believed that such matters were best left to the states to decide.48
The passage of the Uniform Militia Act by a narrow margin was a victory for those who opposed the idea of a select militia. Indeed, the final vote, on March 5, 1792, was extremely close: 31 to 27. In this act, the militia was defined as all "free able bodied white male" citizens between the ages of 18 and 45. Although a number of congressmen had complained that a significant portion of this group of potential militiamen, particularly younger men such as apprentices, might not be able to afford a musket, as the bill required, Congress opted to place the burden of arming the militia on individual citizens and the states.49
Federalists' public response to the Militia Act was predictably negative. The Gazette of the United States, published by John Feno, a close associate of Alexander Hamilton, derided the law.
The Militia Law 'will probably seem a feeble system to many persons versed in military affairs. The great difference of the militia laws of the several states is such, that some will improve, and others perhaps run retrograde in consequence of this law of the United States.
The National Gazette, a paper opposed to the Federalists, offered a more balanced view, conceding that the bill had experienced almost "insurmountable obstacles" in Congress before being signed into law. Although the law was not perfect, it deserved praise for creating "a militia system, the true and equal guardian of freedom and a free country."50
One final piece of legislation on the militia awaited congressional approval. To address the issue of when the militia might be used, a concern that had prompted considerable alarm during ratification, Congress passed the Calling Forth Act of 1792. This law prompted a less protracted debate than the Militia Act. While Article I, Section 8 of the Constitution explicitly empowered the president to call forth the militia to "Suppress Insurrection, and repel Invasion," it was up to Congress to create a legal mechanism to facilitate this process. The bill Congress finally approved was a compromise between those who feared the potential for executive tyranny and those eager to enhance the power to respond to insurrection and rebellion. In spite of the Constitution s clear grant of authority in this area, the idea of giving so much power to the executive alarmed some members of Congress. One member objected that "it was an insult to the majesty of the people to hold out the idea that it may be necessary to execute the laws at the point of the bayonet." The appeal of the states' rights theory of the militia had not been dampened by the protracted debates in Congress over the Second Amendment and the Uniform Militia Act. Indeed, the belief that the states might use their militia against the federal government was so alarming that one Federalist congressman felt impelled to denounce the idea that the militia existed "to enable the individual States to oppose the encroachments which may be made on them by the General Government!"51
When Americans drafted their first state constitutions, they had included a right to bear arms in a well-regulated militia. The essence of this civic conception of the right to bear arms was captured in an oration delivered before the Society of Black Friars in 1793 by Samuel Latham Mitchill, a chemistry professor at Columbia College. After discussing freedom of the press and freedom of religion, two other rights protected by the Bill of Rights, Mitchill turned his attention to the constitutional function of the militia. Mitchill's oration focused on the militia, not the right to bear arms, as the primary principle protected by Bill of Rights. A well-regulated militia existed to "suppress any mob or insurrection" and provide the first line of defense against foreign attack. Mitchill was mindful that firearms had come to occupy a unique role in American society. Comparing the role of firearms in British society with their function in America, he noted that the English game laws had effectively disarmed the people while American law had encouraged a militia drawn from the broad ranks of the citizenry. "The Establishment of a Militia, in which most able bodied and middle aged men are enrolled and furnished "with arms, proceeds upon the principle, that they who are able to govern, are also capable of defending themselves." It followed logically from this principle that "the keeping of arms, is, therefore, not only not prohibited, but is positively provided by law." To achieve the goal of having a well-regulated militia meant that government would encourage citizens to acquire military-style firearms and attain a basic competency with them. In America, he opined, arms "shall not rust for want of employ, but shall be brought into use from time to time, that the owner may grow expert in the handling of them." Mitchill did not equate the right to bear arms with a right of individual self-defense. The Second Amendment did not alter the legal distinction between bearing a gun for self-defense and bearing arms for public defense. His emphasis on the civic purpose of the amendment was unmistakable. Mitchill did, however, state a point that would have seemed obvious to Americans of his day. The fact that Americans were well armed delivered an extra personal security dividend to society. Weapons owned for militia service also "serve for the defense of the life and property of the individual against violent or burglarious attacks of thieves."52
Although there was still broad support for the civic conception of the right to bear arms described by Mitchill, the struggle over the Constitution had transformed the debate over the meaning of this right by embroiling it in the debate over federalism. Proponents of states' rights viewed the militia as a creature of the states while supporters of a powerful federal government sought to effectively nationalize the militia. Neither of these views was shared by radical localists who carried forward the heritage of Shays, viewing the militia as an instrument of the will of the local community. Rather than put an end to debate over the meaning and scope of the right to bear arms, and the proper constitutional function of the militia, the Second Amendment's adoption raised more questions than it answered. The deepening divisions in American society and the political and constitutional crisis of the next decade intensified the debate over the appropriate constitutional function of the militia. Within a decade of ratification it became clear to many that the original fears expressed by Anti-Federalists could no longer be dismissed as "visionary supposition" or "the incoherent dreams of a delirious jealousy." The system of checks and balances created by the framers of the Constitution appeared to be failing, and many Americans wondered if the time had not arrived when a resort to armed resistance might be needed to prevent Federalist despotism from destroying liberty. To prevent such a dire fate, Americans would have to take seriously the radical potential latent in the Second Amendment.53
TO BE CONTINUED