Scene at the signing of the Constitution of the United States.
Debate and controversy surrounding the Second Amendment have been foremost among the nation’s most contentious issues for several years now. The focal point of that debate was directed at the last part of the amendment or the individual “right of the people to keep and bear arms.”
Recent events, showing well-armed “militia” groups standing in state capitols indicates the debate and controversy will remain for the foreseeable future. Since the “militia” part of the Second Amendment has now become the focal point, many misinterpretations and misuses come to light.
Ark Valley Voice previously reported on the parsing and weaponizing of the constitution without regard for its historical context or the exemplification of it as a living document. Those weaponizing tendencies remain here within the Second Amendment itself.
It is the historical context of the militia that actually makes the individual right of the people to “keep and bear arms” interdependent with the first part of the Second Amendment, and possible. In the next two articles, Ark Valley Voice will explain the historical necessity of the militia and its difference from modern equivalencies. The second article will dive into the modern, militia movement and highlight some of its stark differences.
Militias were part of the American colonies long before The Revolutionary War. This was due in large part because militias were an integral part of the English system since as early as the seventh century. In fact, English King Henry II’s 1181, “Assize of Arms” declaration was the first formal establishment of a militia. He stipulated all able bodied freemen were part fo the King’s militia and the King designated the arms and equipment required for all based on income and rank. The declaration also formalized the enduring need for a trained local military force to provide protection against foreign invasion, help quell rebellions, and maintain general peace and order.
General George Washington, Revolutionary War Commander of the Continental Army.
For the American Colonies, numerous foreign military expeditions into the new world, increasingly hostile Indian tribes, and few British military forces available for protection, made militias obvious and necessary.
Militias, therefore, served as the main American Military Force prior to and during The Revolutionary War. Yet, as General George Washington wrote on September 30, 1776, militias were often not the effective fighting force he needed. “I am wearied to death all day with a variety of perplexing circumstances–disturbed at the conduct of the militia, whose behavior and want of discipline has done great injury to the other troops, who never had officers, except in a few instances, worth the bread they eat.”
Washington complained to his cousin Lund regarding the inadequacies he saw when the militia faced a better armed, well-disciplined, and technologically advanced British Army. During the war, he struggled constantly with the 13 state’s governments to get funding to feed and clothe his troops; some took care of their troops, others did not. Still, he also understood the quandary congress faced with raising a standing army. “Whether, as I have said before, the unfortunate hope of reconciliation was the cause, or fear of a standing army prevailed, I will not undertake to say…”
A central part of the larger debate that ensued at the Constitutional Convention was the tension between the role of states and centralized government. In a compromise, Congress passed the 1792 Militia Act. Its central theme was for the states to maintain control of their militias until such time as the President needed them for a larger, more immediate national threat. It is during this time, though, that three important points of historical context often get overlooked, misinterpreted, and misused.
A 1995 John Marshall Law Review succinctly encapsulated these three points. First, during the time of the drafting of The Constitution, the Colonists, more than even their British brethren, disdained standing armies. Not just because of the obvious British Army occupation (where American colonists were forced to feed and house English troops), but also because they, “viewed professional soldiers as having few of the scruples of civilized society.” Additionally, this was prior to conscription; citizens considered the term “army” to mean mercenaries. “Thus, the constitution’s drafters hoped to maintain a militia system that would obviate the need for a standing army.”
Second, the well trained professional police forces we take for granted today did not exist during this time. Citizens were expected to prevent crime and protect themselves “acting both individually and jointly in the form of a posse comitatus.” Militias fulfilled this role effectively and instinctively, as they had for centuries prior.
Third, and probably most significant, is the codification of all able-bodied men between the age of 17 and 45 as part of the militia. As such, those men were also required to supply their own arms and equipment. With these contexts in mind, the impetus becomes clear for why the framers placed the amendment second in The Bill of Rights.
Similarly, it also becomes clear why the statement “A well-regulated militia, being necessary for the security of a free State,” comes before, “the right of the people to keep and bear arms…” As many people have misinterpreted in recent years, neither statement is interdependent of the other. More importantly, in its historical context, the second part of the amendment is dependent on the first.
Little government legislation concerning militias was enacted for more than a century after the 1792 Militia Act. Simultaneously, great advances in military technology and the birth of modern law enforcement occurred. As a result, legacy militias, who were already underfunded, ceased to effectively function as the colonies had needed and the framers had intended. By the time of the 1903 Dick Act, militias, “were little more than social clubs centered on a yearly parade.” The Dick Act modernized militias and brought them into the 20th Century with much of the same patriotic spirit.
Specifically, the Dick Act created the National Guard and, like the 1792 Militia Act, placed primary control in the hands of the States. The Dick Act also gave the president more powers in activating and using the National Guard in national emergencies and defense. Unlike the 1792 Act, however, the Dick Act also separated militias into two groups: organized and unorganized. The organized militia was defined as the National Guard. The “unorganized militia”, in what has become the prime focus for many scholarly, legal, and political interpretations, was defined only as “all other able-bodied citizens not in the organized militia.”
With the exception of the 1916 National Defense Act officially designating the National Guard as a reserve force for the Army, no other significant militia legislation has been enacted since.
The next article will explore the modern “militia” movement.
The U.S. Supreme Court has spoken. It’s legal endgame.
Thank you for reading. I wish it were that easy. Please check out the most recent article showing many of the complicating factors with the modern militia movement. I am interested in hearing your thoughts.
Respectfully, SH