Congress Rendered The Second Amendment Obsolete On June 3, 1916
By David Grace (www.DavidGraceAuthor.com)
A Big Country With No Army
When the Bill of Rights was ratified in December 1791 the United States contained about 338,000 square miles and extended from Massachusetts through Georgia, a distance of about 1,200 miles.
There were no inter-city paved roads, no trains, and ocean transport was only by relatively slow sailing ships.
If England or some other power chose to attack America somewhere along its 1,200 mile border there was no way to quickly deliver soldiers where they might be needed.
In 1794 there were only about 3,800 men in the entire U.S. Army and by 1807 that number had declined to about 2,775, at least partially because the Founders feared and did not want the United States to have a large, standing army.
Given these facts, how was such a huge country going to defend itself?
The Answer Was Militias
The Founders’ answer was to rely on the individual states’ militias rather than a large federal standing army for the defense of the nation.
Each of the original thirteen colonies already had their own militias which pre-dated the Declaration of Independence. The first militia was the Massachusetts National Guard which was established in 1636.
Between the end of the Revolutionary War and the adoption of the Constitution, the United States operated under the Articles of Confederation.
Article 6, Paragraph 4 of the Articles of Confederation provided:
“. . . every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.” [emphasis added]
Article I, Section 8 of the proposed new Constitution provided:
“The Congress shall have the Power
. . .
“15. To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repeal Invasions;
“16. 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.”
Hamilton’s Federalist Paper #29 — “Concerning The Militia”
In the Federalist Papers James Madison, John Jay and Alexander Hamilton argued for the ratification of the new Constitution, but some people were worried that Article I, Section 8 gave the new federal government too much control over the states’ militias.
On January 9, 1788, Alexander Hamilton addressed this issue in Federalist Paper 29, “Concerning The Militia.”
Hamilton argued that the militia provisions of Section 8 were both reasonable and necessary.
He began by acknowledging that many people thought that standing armies were dangerous to liberty and he argued that the best way to avoid the United States needing a standing army was to find an another way to defend the country which alternative would “. . . render an army unnecessary. . . .”
Hamilton’s alternative to a large standing army was for the federal government to have access to an effective militia, but in order for that to work, Hamilton argued, the federal government needed to have the power under Article I, Section 8, paragraph 15 to be able to call upon the militia to suppress insurrections and repel invasions.
He then sought to justify Congress’ power to adopt uniform regulations for the state militias as granted in Section 8, paragraph 16:
“It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects whenever they were called into service for the public defense. . . . This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the National authority. . . . If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the National security.” [emphasis added]
Responding to the critics who feared that the federal government might abuse the regulatory powers given it over the states’ militias under paragraph 16, Hamilton said:
“What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia and to command its services when necessary, while the particular States are to have the sole and exclusive appointment of the officers?” [emphasis added]
In short, Hamilton argued that state militias could substitute for a large, federal standing army, but that in order to be effective, such state militias needed to all have uniform rules of organization and discipline and be well-regulated under standards enacted by the federal government.
Madison’s Wording Of The Second Amendment
It’s not surprising that when Hamilton’s co-Federalist James Madison drafted the Bill of Rights a little less than two years after Hamilton wrote “Concerning The Militia” Madison’s draft of the Second Amendment used Hamilton’s almost exact words.
In “Concerning The Militia” Hamilton wrote: “If a well-regulated militia be the most natural defense of a free country. . . .”
Madison’s draft of the Second Amendment 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.”
This near identity of language between Hamilton’s description of the militias which would be “well regulated” by the laws enacted by Congress under Article I Section 8 and Madison’s reference in the Second Amendment to a well-regulated militia being necessary for the security of the country can hardly be a coincidence.
It’s clear that Madison agreed with Hamilton’s view that for the defense of the United States from invasion and insurrection the nation was better off being able to call on state militias regulated under uniform standards as set by Congress rather than a large, federal standing army.
In order for these vital militias as regulated by Congress to be able to protect the country, the citizens who would serve in them needed to have their own guns readily available. To be assured of having their own guns, the citizens needed to be able to be assured of their right to keep and bear the arms, which guns they would use when the militia was called to service.
And Madison was right.
America had no standing army, couldn’t really afford a standing army, and Americans didn’t want a standing federal army.
For its initial military defense, the United States instead wanted to rely on the state militias staffed by local, armed citizens and organized under a uniform structure set up by Congress.
The Unique Wording In The 2nd Amendment Reveals Its Limited Purpose
Another proof that the Founders did not consider the right to keep and bear arms a citizen’s fundamental right or even a generally good thing is the huge difference between the wording of the Second Amendment and the wording of the other provisions of the Bill of Rights.
The First Amendment doesn’t give a justification for protecting freedom of speech and the press.
The Constitution gives no justification for the protection of the right to due process, jury trial, freedom of religion, etc. because the fundamental importance of those rights was self-evident to the Founders.
No one had to explain why the citizens should be protected from unreasonable search and seizure.
Madison could have written the Second Amendment in the same format he used for the First Amendment, namely, “Congress shall make no law infringing the People’s right to keep and bear arms” period. But he didn’t.
The Second Amendment is the only provision in the Bill of Rights that needed to explain and justify its existence.
Why? Because the Founders didn’t think that the right to keep and bear arms was an obvious, fundamental right of each citizen that was inherently needed to maintain a free society.
Because nobody thought the right to keep and bear arms was an inherent right of a free citizen, Madison knew that he had to explain the specific, one and only purpose for including it in the Constitution, namely, to make sure that armed citizens would be available to staff the Congressionally-regulated militias if and when the President called them up to defend the country against insurrection and invasion.
How The Militia System Worked
In 1792 the Militia Acts were enacted by the second United States Congress. They provided the structure for the organization of the state militias and authorized the President to take command of the state militias in times of imminent invasion or insurrection. Only two years later, President George Washington used this authority to summon the militias of six states to suppress the Whiskey Rebellion.
Under this state-manned and federally-governed militia system, the militiamen furnished their own guns because the states didn’t want to buy and stockpile thousands of rifles especially since all the farmers had their own weapons anyway.
The country’s defense functioned this way for a long time, but gradually, spurred by the Indian Wars and the Civil War, the standing army that Hamilton and Madison feared grew. And then in 1903 Congress changed the crucial elements of the militias making all of them part of the National Guard and no longer allowing militia members to use their own guns.
The Efficiency In Militia Act Of 1903
The Efficiency In Militia Act of 1903, also known as the Dick Act, reorganized all state militias into two groups, the organized militia which was given the title the “National Guard” and the reserve militia, which referred to those other able-bodied men not in the National Guard who could be called up in the unlikely event of an emergency that neither the Guard nor the U.S. Army could handle.
The crucial change made to the militia system by the Dick Act was that members of the militia no longer furnished their own guns. From now on the National Guard would be armed with modern Army weapons at the expense of the Federal Government.
Not only were citizens no longer tasked with providing their own guns in the event that the militia was called up, they were not allowed to bring their own guns even if they wanted to.
The National Defense Act of 1916
Following the Efficiency In Militia Act of 1903, in June of 1916 Congress enacted the National Defense Act which was the death knell for the old militia system.
Section 1 of the National Defense Act provided:
“That the Army of the United States shall consist of the Regular Army, the Volunteer Army, the Officers’ Reserve Corps, the Enlisted Reserve Corp, the National Guard while in the service of the United States, and such other land forces as are now or may hereafter be authorized by law.” [emphasis added]
By this law the well-regulated state militias, now named the National Guard, were considered to be part of the U.S. Army when called to service by the President.
Section 61 made it illegal for any state to maintain any troops in peacetime except as authorized by the National Defense Act.
The states were now forbidden to operate any militia except one that qualified under the National Defense Act itself. Gone were the reserve militias and only the National Guard was left
Section 63 provided that any state militia that was in existence as of May 8, 1792 “shall be allowed to retain its ancient privileges, subject, nevertheless, to all duties required by the law of militia, Provided That, said organizations may be a part of the National Guard and entitled to all the privileges of this Act, and shall conform in all respects to the Assignment, organization, discipline, and training of the National Guard in time of war.”
States were therefore allowed to keep any militia that had been in existence on May 8, 1792 provided that such a militia would now be part of the National Guard and would be operated in accordance with the rules adopted by Congress which were applicable to the National Guard in time of war.
The well-regulated militias referenced in the Second Amendment were now all National Guard units subject to regulation by Congress and were now all using weapons supplied by the U.S. Army rather than by the citizens who served in them.
Section 69 provided: “Hereafter the service period of enlistment in the National Guard shall be for six years, the first three years of which shall be in an active organization and the remaining three years in the National Guard Reserve, hereinafter provided for, and the qualifications for enlistment shall be the same as those prescribed for admission to the Regular Army. . . .”
Section 82 provided: “The National Guard of the United States shall, as far as practicable, be uniformed, armed, and equipped with the same type of uniforms, arms, and equipments as are or shall be provided for the Regular Army.”
Citizens now were not allowed to join a state-run militia, renamed the “National Guard,” unless they met the qualifications for membership in the U.S. Army, and now citizens who were qualified for service in the militia and who chose to enlist in the militia not only didn’t need their own guns, they were forbidden from bringing their own guns even if they had them.
Hamilton’s & Madison’s Reasons For Enacting The 2nd Amendment Were Now Dead
Hamilton’s and Madison’s original belief was that it was vital for the country’s security that all citizens have the right to keep and bear arms so that instead of a large, standing federal army, these already-armed citizens would be available to staff their well-regulated state militias in times of insurrection or invasion.
The idea that every citizen needed to have the right to keep and bear arms so that rather than a standing federal army, armed citizens would be always available to serve in his state’s militia in the event of invasion or insurrection was demolished when
- Only a limited number of the state’s citizens were even eligible to join the militia and,
- None of them were allowed to bring their own guns even if they had them, and
- We now had that substantial federal standing army that the militias were intended to eliminate the need for
Once the country had a substantial, federal standing army and members of well-regulated state-operated militias were armed with guns supplied by the federal government and militia members were actually prohibited from supplying their own guns, the Second Amendment’s stated reason for protecting the rights of the citizens to keep and bear arms, namely the need for citizens to have guns to fight with when the militia was called up, disappeared.
Some People Wish The 2nd Amendment Had Been Adopted For A Completely Different Purpose, But It Wasn’t
Before people start coming up with lots of other reasons why they think that citizens should have the right to keep and bear arms, we need to remember that we’re not debating whether or not as a matter of policy there should or shouldn’t be such a constitutionally protected right.
No, we’re only talking about the actual reason this Second Amendment was approved by the Congress and the States and added to the Constitution in 1791, and that reason was that as an alternative to a large standing army the the federal government would have access to already-armed citizens ready to fight invaders and put down insurrections when the militia was called to service.
As much as some people today may like the idea of an unrestricted constitutional right to keep and bear arms so that citizens will have guns they can use in an insurrection against a U.S. government they dislike, we have to remember that the Second Amendment we actually have which was adopted back in 1791 does NOT say.
- “In order for citizens to be able to protect themselves from a tyrannical government, the right of the people to keep and bear Arms shall not be infringed.”
Nor does it say,
- “In order for citizens to be able to resist the excessive power of the government, the right of the people to keep and bear Arms shall not be infringed.”
The Second Amendment Was Enacted To Provide Armed Men For Militias, Not Armed Men To Overthrow The Government
We’re stuck with the Second Amendment as it was adopted by the Congress and the States and not some other, differently worded Second Amendment that some people today wish had been enacted.
The Founders did not write the Second Amendment to promote some idea that citizens should have the right to keep and bear arms so that they could mount an insurrection against a federal government which they felt was too controlling.
It’s very clear that the Second Amendment that was actually approved was passed not to promote or enable armed insurrection against the federal government but for exactly the OPPOSITE reason, so that the federal government would have an effective military force quickly available to put down an armed insurrection .
The reason that the “keep and bear arms” language was put in the Second Amendment was to enable the federal government to have a ready supply of already-armed citizens available to quash a rebellion, not to arm citizens so that they could mount one. (see Article 1, Section 8, Paragraph 15)
It’s worth noting that the federal government did just that when it in 1794 it put the militias of six states under federal control to quash the Whiskey Rebellion and again in 1859 when Virginia militiamen and U.S. Army soldiers put down John Brown’s anti-slavery insurrection.
Armed Citizens Were No Longer Either Needed Nor Wanted
The Founding Fathers reasons for enacting the Second Amendment, assuring that rather than a standing army we would have a supply of already-armed men to staff the states’ militias in times of national emergency, disappeared over one-hundred years ago.
Today, the Second Amendment is no less obsolete in the fulfilling of its explicitly stated purpose (instead of a standing army, militias composed of men who would fight with their own guns) than if its wording had been:
“The employment and skills of the craftsmen who manufacture muskets and mini-balls being vital to the Nation, the right of the people to keep and bear Arms shall not be infringed.”
Certainly, many people today have totally different reasons than those held by Hamilton and Madison for wanting citizens to have a constitutionally protected right to keep and bear arms, but those other reasons have nothing to do with the Second Amendment that was drafted by Madison and approved by the Congress and the States.
Moreover, if today’s Second Amendment did not exist and if a revised form of it without any reference to the importance of having armed citizens in order to maintain a well-regulated militia was newly proposed, I doubt that it would receive the approval by the Congress and state legislatures necessary to become part of the Constitution.
Today the Second Amendment lives on like an appendix that has long since lost the purpose for which it was created, but yet resolutely remains in a body politic whose original justification for it disappeared over a hundred years ago.
The Declaration Of Independence
I can’t close this column without commenting on the notion sometimes expressed that some of the language in the Declaration of Independence legitimizes armed rebellion against the United States government.
“ We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
When Jefferson talks about governments that derive their powers from the consent of the governed, he’s is not saying that every person in the country must unanimously consent to every law the government enacts, and if some of them don’t like a law then they get to stage a rebellion against the government.
Jefferson believed in representative democracy. To Jefferson “the consent of the governed” meant the consent of the majority of the representatives who were elected by a majority of the voters in each district.
“The consent of the governed” language in the Declaration of Independence means the agreement of a majority of the governed not that there has to be unanimous consent of every person in the country for everything the government does or those who disagree get to start an armed revolt.
“That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
Again, Jefferson believed in representative democracy, majority rule through elected representatives. To him the “Right of the People” didn’t mean that every single person who didn’t like the government had a right to abolish it.
To him “the People” with a capital “P” meant the majority of the People. The “them” in “as to them” meant the majority of the people.
Jefferson believed that the majority had the right to change the form of their government, not that every unhappy minority group had a right to abolish the government if it didn’t like the laws the majority passed.
“But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
Their right, their duty refers to the right and duty of the majority, not a right belonging to every single unhappy citizen.
To Jefferson “abuses and usurpations” meant the government’s denial to all of the citizens in the country of some or all of the basic rights that were later set out in the Constitution — the right to vote, the right to speak, the right to be secure in your homes, the right not to have your property taken without due process of law, the right to a fair trial, etc.
He didn’t mean that anyone who didn’t agree with a law that was passed by a freely elected representative body was entitled to ignore that law or try to overthrow the government that enacted it.
Similarly, “absolute despotism” meant the imposition of laws by a king or a dictator without the citizens affected by those laws being able to vote for the members of the government that enacted the law.
He didn’t mean that any law that was passed by freely elected legislators could be disregarded or resisted with violence because the losing citizens thought it was a bad idea.
Jefferson was not a fool. He knew that there will never be unanimous agreement about anything.
Of course he knew that you can’t run a country where every person who doesn’t agree with what the elected government does is somehow authorized to oppose that law or that government with a gun.
If that were the case then this 10% of the population that thinks the law should be X would be entitled to take up arms against the government while at the same time this 15% that thinks that the law should be Y could start their own revolution and another group that represented 5% who think that the law should be Z could start their revolution, and so forth.
Of course Jefferson and the rest of the Founding Fathers knew that no society, no country, could ever function that way.
When the constitution was drafted the founders were careful to include provisions allowing the President to call up the militia to crush any rebellion by some minority that was unhappy with the laws that the majority passed.
So, if you think that the Declaration of Independence promotes the idea that minorities who lose elections have a right to mount an armed rebellion against an elected government, you need to think again.
— David Grace (www.DavidGraceAuthor.com)
