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Jan 19 2013

What is a ‘well regulated militia’ and what is its purpose?

The comments to the previous post on the current gun control debate generated an excellent discussion with a lot of useful information both about the history of the second amendment and the characteristics of the various types of guns that are out there and the appropriate terminology to refer to them, a lot of which was new to me since guns are peripheral to my life and I haven’t paid much attention to the topic.

One of the puzzles of the second amendment (to me at least) is the use of the opening phrase ‘A well regulated militia, being necessary to the security of a free state’ to justify ‘the right of the people to keep and bear arms’. What was meant in those days by a militia and what should it be taken to mean now? What does ‘well regulated’ mean? What was the intended purpose of these militias? What is the ‘state’ that is being referred to? What kind of ‘security’ is being talked about? Some have argued that the opening phrase is boilerplate preamble that should not be given much weight. I am not so sure. The framers of the constitution were notoriously parsimonious with words so we have to assume they used them with deliberate intent.

Since there were no standing armies at either the federal or state level at that time the constitution was written, I had assumed that what was being talked about was something like the present day National Guard except much more informal and loosely structured, consisting of volunteer groups of citizens at a local level with some military training who could be mobilized quickly if necessary to quell civil disorder and defend against an invader.

But Thom Hartmann has an interesting article that says that the language of the second amendment had no such benign intent. Instead it was a carrot to get the slave owning states to sign on to the new constitution by putting in a provision that allowed them to continue the ‘slave patrols’ that then existed to keep slaves in order. The ‘well regulated militia’ referred to those slave patrols (which were actually called state militias then) and ‘security of a free state’ meant preventing the collapse of those states with slave economies if the militias that enforced slavery were undermined.

In the beginning, there were the militias. In the South, they were also called the “slave patrols,” and they were regulated by the states.

In Georgia, for example, a generation before the American Revolution, laws were passed in 1755 and 1757 that required all plantation owners or their male white employees to be members of the Georgia Militia, and for those armed militia members to make monthly inspections of the quarters of all slaves in the state. The law defined which counties had which armed militias and even required armed militia members to keep a keen eye out for slaves who may be planning uprisings.

As Dr. Carl T. Bogus wrote for the University of California Law Review in 1998, “The Georgia statutes required patrols, under the direction of commissioned militia officers, to examine every plantation each month and authorized them to search ‘all Negro Houses for offensive Weapons and Ammunition’ and to apprehend and give twenty lashes to any slave found outside plantation grounds.”

It’s the answer to the question raised by the character played by Leonardo DiCaprio in Django Unchained when he asks, “Why don’t they just rise up and kill the whites?” If the movie were real, it would have been a purely rhetorical question, because every southerner of the era knew the simple answer: Well regulated militias kept the slaves in chains.

Hartmann then explains why the slave owning states were alarmed that the proposed new constitution might be used by abolitionists to take away this slave-maintaining power and were determined to put in language that would protect them.

If the anti-slavery folks in the North had figured out a way to disband – or even move out of the state – those southern militias, the police state of the South would collapse. And, similarly, if the North were to invite into military service the slaves of the South, then they could be emancipated, which would collapse the institution of slavery, and the southern economic and social systems, altogether.

These two possibilities worried southerners like James Monroe, George Mason (who owned over 300 slaves) and the southern Christian evangelical, Patrick Henry (who opposed slavery on principle, but also opposed freeing slaves).

Their main concern was that Article 1, Section 8 of the newly-proposed Constitution, which gave the federal government the power to raise and supervise a militia, could also allow that federal militia to subsume their state militias and change them from slavery-enforcing institutions into something that could even, one day, free the slaves.

Hartmann makes a persuasive case that those who supported the institution of slavery were determined to keep the slave patrols independent of the federal government and that this was what lay behind the language of the second amendment. I am not an expert on US history, never having had to study it as a subject in school and have not even read the Federalist Papers, but I know that some readers of this blog know a lot about this topic and I am curious to learn what they think of his argument.

18 comments

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  1. 1
    slc1

    I think that Mr. Hartmann’s analysis is, at least in part, valid. However, another consideration was the animus that the writers of the Constitution had toward standing professional armies, such as existed in Europe, considering them to be a threat via military coup d’etat to democratic governance. At the time, a well regulated militia with the type of weapons available was capable of presenting viable opposition to such an armed force. In the age of air power and mechanized warfare that exists today, this would be a rather slim reed.

  2. 2
    Barry Dredze

    The responsibility for regulating the “well regulated Militia” of the second amendment is found in Article I; Section 8 of the US Constitution: “The Congress shall have the Power… To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

    A good example of the purpose of the militia occured early in US history with the Whiskey Rebellion. In 1794, President George Washington rode out to western Pennsylvania at the head of 13,000 militia troops to put down an insurrection that rose in protest of an excise tax on the production of whiskey to help pay down debts from the Revolutionary War.

    In his proclamation, President Washington wrote, “And whereas, by a law of the United States entitled ‘An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions,’ it is enacted that whenever the laws of the United States shall be opposed or the execution thereof obstructed in any state by combinations too powerful to be suppressed by the ordinary course of judicial proceedings or by the powers vested in the marshals by that act, the same being notified by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations and to cause the laws to be duly executed.”

    The rebellion was easily routed and the whiskey tax ran its course, ending in 1801.

  3. 3
    stephenyutzy

    I was a bit disappointed to see this post without mention of the 2008 supreme court decision DC vs Heller, in which a 5-4 majority held that

    The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms

    The majority decision also addressed the issue of freed slaves:

    The understanding that the Second Amendment gave freed blacks the right to keep and bear arms was reflected in congressional discussion of the bill, with even an oppo­nent of it saying that the founding generation “were for every man bearing his arms about him and keeping them in his house, his castle, for his own defense.”

    In the dissenting opinion, Justice Stevens writes:

    The Second Amendment was adopted to protect the right of the people of each of the several States to main­tain a well-regulated militia. It was a response to con­cerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limit­ing any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.

    This case was asking whether there is an individual right to bear arms for self-defense in the home, and it’s interesting to see that Justice Stevens argues that there is a common-law right to self-defense, but doesn’t think that keeping and bearing arms directly relates to that right.

    This is the part of the dissent that I have trouble interpreting though, and it’s the opening paragraph:

    The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

    It sounds like they’re actually agreeing that it’s an individual right (thereby making the “individual” question a unanimous decision), and disagreeing about the scope of that right, but I’m having trouble digesting the language.

  4. 4
    curcuminoid

    Except there weren’t any US standing armies at the time, and you would have to prove that the signers of the Constitution intended to have one at the time when they signed. Further, if the founders had intended to produce milities that could resist professional armies, then it wouldn’t have used the words “well regulated.” Nothing, “well-trained” or “well equipped” would have worked significantly better if an oppositional force were desired. Furthermore, its doubtful that such a force would have been significant even then, as the militia would have lacked calvary and cannon.

    Hartman’s interpretation has merits, but is not without flaws. For example, “a free state” is a poor describer of slave states, and if state here refers to the individual states and not the country, it would have said “…of free states.”

  5. 5
    kyoseki

    It sounds like they’re actually agreeing that it’s an individual right (thereby making the “individual” question a unanimous decision), and disagreeing about the scope of that right, but I’m having trouble digesting the language.

    I read it as a general agreement that someone has the right to own a firearm for self defense, but it states that limitations can be put on the scope of the firearms that can be owned – from the decision;

    Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose:

    At this point in time though, I find any discussion regarding the original intent of the 2nd Amendment rather moot. With the history of legal precedent currently in place, people’s rights to own handguns is considered to be explicitly supported by the Constitution, so it’s not going away any time soon.

    Handguns are explicitly mentioned in the decision as being a firearm that people have the right to own;

    “Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”

    Semi automatic handguns are, incidentally, far more popular than revolvers, particularly for self defense, so while the decision does not explicitly talk about semi automatic handguns, I’m doubting any legislation attempting to ban them would survive a legal challenge.

    Any rational discussion on gun control really needs to take that into account, simply disagreeing with the decision is as irrelevant as Conservatives harping on about Roe v Wade.

  6. 6
    ahcuah

    Just so folks are aware, Madison’s original words weren’t quite as confusing. It was only after it went through the Congress that the odd phasing arose (and I’ve never found anything that explains why it got re-phrased).

    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.

  7. 7
    bubba707

    We need to realize the historicity of the militias is interesting but no longer pertains in the modern world. I todays world the well regulated militia is the National Guard (agree with how they’re used these days or not is irrelevent to the subject). The Guard is made up of our friends and neighbors who have day jobs outside the Guard. They give time and effort for a stipend in order to train and become disciplined units, most expect their service to be to the community in times of disaster and as a support to authorities in keeping order. This pretty much defines well regulated militia. I’ll skip editorializing on how they’re being used these days.

  8. 8
    joachim

    Yeah, and there was no radio or television back then, so the first amendment does not apply to those media.

  9. 9
    joachim

    Moderation?

    No “free” thought here.

    Bye Bye.

  10. 10
    Pierce R. Butler

    Barry Dredze @ # 2: In 1794, President George Washington rode out to western Pennsylvania at the head of 13,000 militia troops …

    During the Whiskey Rebellion, Washington was feeling his years (and a recent horse accident), and unable to travel very far even in carriages. He in effect put Treasury Secretary Alexander Hamilton in charge of the whole affair.

    Since Hamilton was (a) the originator of the tax which provoked the rebellion, (b) eager to establish a strong central government, and (c) a ruthless bastard [literally], ass was kicked and names were taken and ass was kicked some more. The politics of organizing a militia to suppress a genuinely grassroots popular insurgency got very complicated; suffice it to say that few of the state militiamen enforcing Hamilton’s orders came from Pennsylvania.

    I recommend William Hogeland’s The Whiskey Rebellion: George Washington, Alexander Hamilton, and the Frontier Rebels Who Challenged America’s Newfound Sovereignty for a modern-minded analysis of the events and politics of this significant slice of US history.

  11. 11
    Mano Singham

    I’m afraid that you misunderstand. All first time commenters are moderated as a spam control device. After that first approval, they are free to post without moderation.

  12. 12
    left0ver1under

    The blathering about “second amendment rights” is done by those ignorant of what the words mean. Like gay-hating bible quoters, they take things out of context to rationalize their bigotry and opinions while ignoring the surrounding text which applies to themselves or contradicts them.

    The “second amendment” reads:

    “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.”

    “State” in that statement means nation. The “second amendment” refers solely to a national army, the claim that a country has a right to arm and defend itself. It does not refer to individuals having any “right” to own guns.

    It’s not the only case where the language of the 18th century has been misunderstood and misconstrued by those using it for personal gain. Consider the “first amendment” of the US constitution.

    The “first amendment” reads:

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    “Respecting” means “with regard to”. It does not mean “admiration for religion”, despite the claims of the ignorant and religious (but I repeat myself). “No law with regard to an establishment of religion” means the US should not have an “official religion”. But why let the facts get in the way of an opinion?

  13. 13
    slc1

    Well, the hastily organized militias raised by the 13 colonies put up a decent resistance against professional British forces at Lexington and Concord. They also did pretty well agains a professional British force at Saratoga.

    Although it is true that the US in 1789 did not have a standing army, the founders were afraid of the negative consequences of having such a force. For most of the history of the United States, we did not have a standing army of any significant size (at the start of the Civil war, the US Army consisted of some 16,000 men, hardly a significant force). It wasn’t until the Second World War that the US raised a large permanent military establishment (this doesn’t include the navy which became a significant permanent force in the 1890s). The strategy of the US armed forces up to the Second World War was similar to that of Great Britain, namely depending on control of the open seas with a powerful navy but with a small army.

  14. 14
    bubba707

    First off, the Second does specify the right of THE PEOPLE without qualifying it, saying only that the reason was a well organized militia that might be called upon. The reason notwithstanding it still says the people with no qualification or exception.
    Now, let’s look at the difference between then and now. In the early days there was no adequate standing army and the Govt didn’t supply weapons and equipment. Men were required to provide their own, which was not a hardship since they used the same weapons they used for hunting and protection at home.
    Today we have the National Guard, our modern version of militia citizen soldiers. The Govt provides the weapons, equipment and training. While the weapons and munitions are kept at an armory the individual gear is kept at home by the members. The Guard can be called up by the State Governor or the Federal Govt and since the War on Terror often are Federalized by units to fight overseas, something that, in the past, was only done in dire emergency.
    In the final analysis nothing there invalidates what the Second says, although there have always been some restrictions on individual rights, as there must be to maintain a civil society. Gun control is simply one of those hot button issues where we need to completely ignore the extremes on both sides in order to have a reasoned and rational discussion to find solutions. The hotheads contribute nothing to the conversation.

  15. 15
    Barry Dredze

    Thanks. Nevertheless, the regulatory powers of Congress as spelled out in Article I, Section 8 of the US Constitution regarding the well regulated militia referred to in the 2nd amendment appear to put the right to keep and bear arms in a different light than is commonly asserted.

  16. 16
    Barry Dredze

    Further, the 2nd amendment says nothing about ownership. Considering the regulatory powers of Congress regardming the well regulated militia of the 2nd amendment, one may also read it as an establishment of compulsory national service where the arms one has kept and born are tracked by the government and even turned in at the conclusion of one’s service. I submit that it will be a great Veterans’ Day when we can all honor each other.

  17. 17
    Strix nebulosa

    Just a few thoughts from the time from some, not insignificant people about the context and thought behind the ammendment.

    “On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” (Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322)

    “I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.”

    George Mason
    Co-author of the Second Amendment
    during Virginia’s Convention to Ratify the Constitution, 1788

    “The great object is that every man be armed” and “everyone who is able may have a gun.” (Patrick Henry, in the Virginia Convention on the ratification of the Constitution. Debates and other Proceedings of the Convention of Virginia,…taken in shorthand by David Robertson of Petersburg, at 271, 275 2d ed. Richmond, 1805. Also 3 Elliot, Debates at 386)

    “The best we can hope for concerning the people at large is that they be properly armed.” (Alexander Hamilton, The Federalist Papers at 184-8)

    “Americans have the right and advantage of being armed – unlike the citizens of other countries whose governments are afraid to trust the people with arms.” (James Madison, The Federalist Papers #46 at 243-244)

    “A militia, when properly formed, are in fact the people themselves …”
    Richard Henry Lee
    writing in Letters from the Federal Farmer to the Republic, Letter XVIII, May, 1788.

    “The people are not to be disarmed of their weapons. They are left in full posession of them.”
    Zachariah Johnson
    Elliot’s Debates, vol. 3 “The Debates in the Several State Conventions on the Adoption of the Federal Constitution.”

    “… the people are confirmed by the next article in their right to keep and bear their private arms”
    Philadelphia Federal Gazette
    June 18, 1789, Pg. 2, Col. 2
    Article on the Bill of Rights

    “And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the Press, or the rights of Conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; …”
    Samuel Adams
    quoted in the Philadelphia Independent Gazetteer, August 20, 1789, “Propositions submitted to the Convention of this State”

    “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 the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States”
    (Noah Webster in `An Examination into the Leading Principles of the Federal Constitution’, 1787, a pamphlet aimed at swaying Pennsylvania toward ratification, in Paul Ford, ed., Pamphlets on the Constitution of the United States, at 56(New York, 1888))

    “Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American… The unlimited power of the sword is not in the hands of either the federal or state government, but, where I trust in God it will ever remain, in the hands of the people”
    (Tench Coxe, Pennsylvania Gazette, Feb. 20, 1788)

    “To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike especially when young, how to use them.”
    (Richard Henry Lee, 1788, Initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights, Walter Bennett, ed., Letters from the Federal Farmer to the Republican, at 21,22,124 (Univ. of Alabama Press,1975)..)

    “No kingdom can be secured otherwise than by arming the people. The possession of arms is the distinction between a freeman and a slave. He, who has nothing, and who himself belongs to another, must be defended by him, whose property he is, and needs no arms. But he, who thinks he is his own master, and has what he can call his own, ought to have arms to defend himself, and what he possesses; else he lives precariously, and at discretion.”
    (James Burgh, Political Disquisitions: Or, an Enquiry into Public Errors, Defects, and Abuses [London, 1774-1775])

    “To prohibit a citizen from wearing or carrying a war arm . . . is an unwarranted restriction upon the constitutional right to keep and bear arms. If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of constitutional privilege.”
    [Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54 (1878)]

    “The whole of the Bill (of Rights) is a declaration of the right of the people at large or considered as individuals…. It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of.”
    (Albert Gallatin of the New York Historical Society, October 7, 1789)

  18. 18
    Chris P

    In the constitution state means individual state, not federal nation. There are people, states, and the United States; each considered separately. Your comment about respecting is accurate. Though it would have been better had you commented on what an established religion meant back then. It meant (and still does in much of the English speaking world) a national, government endorsed/sponsored church. For example, the Church of England is the established church of England. The queen is the head of state and the head of the church, the bishops sit in the House of Lords, etc.

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