Monday, July 4, 2016
A Well Regulated Militia Composed Of The Body Of The People
Updated July 9, 2016
The Revolutionary Era language within the Second Amendment that sometimes confuses modern Americans is the well regulated militia terminology within its first clause. Americans today are so over-regulated by government that the phrase well regulated militia is automatically assumed to mean government regulated militia. This is clearly not the case with the Second Amendment and its state bill of rights predecessors with the same terminology because their context was always a limit on government, either state or Federal, and well regulated could not have meant government regulated in that context. To discover exactly what the founding generation understood a well regulated militia to mean, all that is necessary is to look at what our ancestors said and wrote regarding exactly who the militia were understood to be and in what context 'a well regulated militia' was used by them within American bills of rights.
First, how was the term "militia" used in early America? Since we are dealing with the Ratification Era, Alexander Hamilton's discussion of militia in The Federalist #29 will help illustrate common period usage. Hamilton was not discussing a Bill of Rights provision limiting government powers. He was explaining what the new Federal Government should do after Ratification of the Constitution under its delegated Article 1, Section 8 powers over the militia. Hamilton's usage was essentially the same as that used previously during the American Revolution and earlier in the Colonial Period.
The Federalist #29 provides three different definitions of the term militia that are entirely consistent. Hamilton described the militia as:
"the great body of the yeomanry and of the other classes of citizens"
"the people at large"
"the whole nation". [The Origin Of The Second Amendment, (hereafter OSA) pp.197-198]
In other words, Hamilton equated the people and the militia, something that was common period usage. Hamilton also provided a definition for "a well regulated militia".
"To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions as often as might be necessary, to acquire the degree of perfection which would intitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss." [OSA, p.197]
According to Hamilton, to be considered well regulated, the militia had to be effective for defense by having a certain degree of perfection in the use of arms. Well regulated was a character of the militia resulting from their preparedness, not something that could be suddenly bestowed upon the militia by passage of a law. Well regulated did not mean authorized by government.
Starting with these definitions - the militia are understood to be the people, and well regulated means the people are capable of defense - look at the first American state declaration of rights, that of Virginia from June 12, 1776 (prior to the Declaration of Independence). The introduction to Virginia's State Declaration of Rights stated:
"A declaration of rights made by the representatives of the good people of Virginia, assembled in full and free Convention; which rights do pertain to them, and their posterity, as the basis and foundation of government." [OSA, p.747]
Section 13 of the Declaration contained the first American bill of rights predecessor of the Second Amendment and the first use of 'well regulated militia' language in such a uniquely American context:
"Sec. 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state;" [OSA, pp.747-748]
This provision and its “well-regulated militia” terminology was clearly understood as a limit on the state government. Both George Mason, who wrote the language, and Patrick Henry, who helped adopt it, stated this fact much later in the Virginia State Ratifying Convention of 1788, where Mason indicated:
"there were certain great and important rights, which the people, by their bill of rights, declared to be paramount to the power of the legislature. . . .it was necessary that the great rights of human nature should be secure from the encroachments of the legislature, . . ." [OSA, p.436]
Patrick Henry followed Mason in discussion of Virginia's Bill of Rights, indicating the general need for the well regulated militia related protections to be added in a Federal bill of rights:
"You have a bill of rights to defend you against the state government, . . . and yet you have none against Congress," [OSA, pp.437-438]
The reason this Revolutionary Era language was brought up in Virginia's 1788 Ratifying Convention was because Mason and Henry were attempting to get the Virginia State Declaration of Rights adopted by the Convention as a proposal for a U.S. Bill of Rights. They succeeded, and that is why Virginia's Ratifying Convention adopted a Bill of Rights containing an exact quote of the state's own 1776 well regulated militia clause.
The June 27, 1788 Virginia State Ratifying Convention proposed Bill of Rights, written by Mason and introduced by Henry, began:
"That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following:-" [OSA, p.457]
Article 17 of the Virginia Ratifying Convention Bill of Rights declared:
"17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state;" [OSA, p.459]
Thus, Virginia's "well regulated militia" of the people language was part of the "essential and unalienable rights of the people" according to the delegates of Virginia's Ratifying Convention. And those who wrote and promoted it understood it as a limit on the state government that was now being added as a limit on the new proposed Federal Government under the U.S. Constitution. Virginia's Bill of Rights proposal and its Second Amendment language became the model for the U.S. Bill of Rights because several other state ratifying conventions essentially copied it.
North Carolina adopted all of Virginia's proposals verbatim on August 1, 1788 when it refused to ratify the Constitution until the proposals were presented to Congress and a new Federal constitutional convention. [OSA, p.505] Thus, two state ratifying convention proposals had exactly the same two-clause Second Amendment predecessor, and these included an exact quote of Virginia's 1776 language.
The New York Ratifying Convention, which had ratified somewhat earlier on July 26, 1788, rather than proposing a bill of rights for later adoption, included an entire Declaration of Rights within its Ratification Document, much of it virtually copied from the Virginia Ratifying Convention proposed Bill of Rights. New York's Second Amendment predecessor stated:
"That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state;" [emphasis original, OSA, p.481]
The New York delegates of the people ratified the U.S. Constitution "Under these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and the the explanations aforesaid are consistent with the said Constitution, . . ." [OSA, p.483]
Following New York's lead, Rhode Island later adopted both of the provisions quoted directly above within its own Ratification Declaration of Rights prior to ratification of the U.S. Bill of Rights provisions. [OSA, p.735]
Thus, there were four state ratifying conventions that defined “a well-regulated militia” as either “composed of” or “including” "the body of the people". The reference to "militia" in common period usage standing all by itself is a reference to the people - “the people at large”, “the whole nation” - as documented above. The “well regulated” reference simply means that the people are capable of effective defense. This means the people possess arms and know how to use them, and the government would be violating the Constitution by attempting to disarm them since this was clearly intended as a limit on government power to assure a defensively effective population. Also, this language, in conjunction with George Mason's addition of Pennsylvania style "that the people have a right to keep and bear arms" language and James Madison's restrictive “shall not be infringed” language makes the Second Amendment perfectly clear.
Going back to the original Virginia 1776 Section 13 well regulated militia Bill of Rights provision, which the above state ratifying provisions are directly related to, note that George Mason used virtually the same language in relation to an all voluntary self-embodying defensive association in Fairfax County formed in late 1774 and early 1775. This language was used because the people were forced to rely on their own personally held arms and ammunition for defense. British government officials not only failed to assure the militia were armed or trained, they did exactly the opposite, stopping all importation of arms and gunpowder and seizing any publicly stored arms and ammunition to further assure control by force over the population. Americans assured that disarming of the population could never occur under their newly formed state and Federal governments, that the people would be in control, and that is the reason for the Second Amendment and its related period state bill of rights provisions. [See The Founders' View Of The Right To Bear Arms: A Definitive History Of The Second Amendment, pp.36,45-46,48-49, 63-65 for relevant history and early Mason Triad development]
The Second Amendment is not the ambiguous and strangely worded sentence that those disliking its provisions insist cannot be understood. To grasp its meaning one only has to look at common period usage and the full context of its inclusion in so many American bills of rights. It is a Bill of Rights provision limiting Federal Government power developed directly from state bill of rights provisions limiting state power. Interpreting it in any other way involves ignoring the period usage and historical evidence, and results in any contrary interpretation being in direct conflict with documented American historical reality.
Have a Thoughtful Independence Day!