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Origins of the Second Amendment: The Creation of the Constitutional Rights of Militia and of Keeping and Bearing Arms. (excerpts)


Other unpublished dissertations of interest (The full text can be ordered from UMI Dissertation Services, 1-800-521-0600):
Mark Pitcavage, Ohio State, "An Equitable Burden: The Decline of State Militias, 1783-1858" (1995). UMI order no. 9612259.
Kenneth Otis McCreedy, U of Ca., Berkeley, "Palladium of Liberty: The American Military System, 1815-1861," (1991). UMI order no. 9228764.

Other more recent history:
Don Higginbotham, The Second Amendment in Historical Context, Constitutional Commentary, October, 1999.
Michael A. Bellesiles, "Suicide Pact: New Readings of the Second Amendment," Constitutional Commentary, October, 1999.
Saul Cornell, "Commonplace or Anarchronism: The Standard Model, the Second Amendment, and the Problem of History in contemporary Constitutional Theory," Constitutional Commentary, October, 1999.
Garry Wills, "To Keep and Bear Arms," The New York Review of Books, Sept. 21, 1995.
A recent collection of historical papers on the Second Amendment is published by the Chicago-Kent Law Review, Vol. 76, No. 1, 2000, "Symposium on the Second Amendment: Fresh Looks," articles by Bogus, Bellesiles, Rakove, Farber, Finkelman, Heyman, Dorf, Spitzer, and Uviller & Merkel.

Other history not mentioned or rarely mentioned by the gun lobby/libertarian pseudoscholars includes:

Jerry Cooper, The Rise of the National Guard (1997). Chapter 1 treats the period from colonial America to the Civil War.
Russell F. Weigley, History of the United States Army (1967). Weigley's theme is the dual system of citizen soldiers and professional army.
Dave R. Palmer, 1794: America, Its Army, and the Birth of the Republic (1994).
Lawrence Cress, Citizens in Arms (1982)
Lawrence Cress, "An Armed Community: The Origins and the Meaning of the Right to Bear Arms," J. Am Hist., 1984. Now in our Archive
John K. Mahon, History of the Militia and the National Guard,(1983)

Chapter 3, Chapter 4, Chapter5
Leon Friedman, "Conscription and the Constitution", Mich. L. Rev., 1969. Another perspective on the militia in our Archive

Also, a very readable, informative, historically accurate perspective from a politician who is not a professional historian but who did spend twelve years on the Senate Armed Services Committee:
Gary Hart, The Minutemen (1998), chapter 4, "The Republic and the Militia"
Books can be ordered from Amazon.com on our Resources file.


© 1978, John Kenneth Rowland,
used with permission.

Provided here are only the Introduction, the summaries of parts 1, 2, and 3 from the original text, and chapters 6 and 11. The full text can be ordered from UMI Dissertation Services, 1-800-521-0600. Order Number 7902218.

Footnote numbers are in ().
Footnote texts are omitted, except in Chapter 6.

Page numbers of original text are in [].


Table of Contents

Introduction, [this file]

PART ONE: Origins of the Militia and the Right to Keep Arms [SUMMARY, this file]

Chapter 1: Origins of the English Militia, 1181-1663
Chapter 2: Origins of the Ideology of Militia and Arms and the Right to Keep Arms, 166-1689

PART TWO: Origins of the Colonial Militia [SUMMARY, this file]

Chapter 3: Colonial Adoption of English Militiary and Politicao-Military Practices, 1607-1689
Chapter 4: Imperial Reform of the Colonial Militias, 1674-1721
Chapter 5: Arms Bearing, Military Obligation, and Legislative Control of the Colonial Militia, 1721-1775

PART THREE: Origins of the Right to Bear Arms [SUMMARY, this file]

Chapter 6: Ideological Concepts of Militia and the Right of Self-Preservation
Chapter 7: Militia, the Right to Keep Arms, and Oppostion to the British Army, 1768-1774
Chapter 8: The Rise of the Revolutionary "New Militia," 1774-1776
Chapter 9: Birth of the Right to Berar Arms in the State Bills of Rights, 1776-1784
Chapter 10: Federal Constitutionalism and Attempted Militia Reform, 1776-1787
Chapter 11: The Bill of Rights, Militia, and the Right to Keep and Bear Arms, 1787-1791

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[1]

INTRODUCTION

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.

The Second Amendment to the Federal Constitution in recent years has become one focus of controversy over gun control, whether the federal government can constitutionally require citizens to register hand guns and other firearms and confiscate or prohibit ownership or use of certain categories of weapons. Opponents claim that the amendment does not allow federal regulation of any type of firearm. They contend that the common law principle of self-defense and the political right of revolution against tyrannical government are inherent in this second article of the Bill of Rights. The reference to militia, they claim, does not affect the civil right of arms bearing which they further claim has existed apart from military and law enforcement duties since medieval times. To them the first and second clauses are grammatically independent, lacking only a conjunction to make the dual nature of the Second Amendment clear. If rewritten, it would read, "Both a well regulated militia, being necessary to the security of a free state, and the right of the people to keep and bear arms, shall not be infringed." To advocates of gun control, on the other hand, the militia clause gives a military coloring to the entire amendment. Their version stresses [2] the grammatically relative nature of the first clause and its subordination to the second, "Because a well regulated militia is necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." Since historically the phrase "to bear arms" has had the primary meaning of military service, and since the "militia" is a military institution for the defense of the states, gun control advocates argue that the Second Amendment applies only to military weapons which might be used by the modern National Guard, the institutional successor to the state militias. Therefore, hand guns may be constitutionally proscribed by the federal government without violating the right of bear arms in defense of state and nation. At issue from both points of view is the meaning and significance of the words and concepts in the amendment and the understanding of them by eighteenth-century Americans. Here is the weakness of both arguments. Neither has a clear view of eighteenth century thought nor of the long-range development of concepts, though both touch on some aspects of them. Partly the fault lies in the concepts themselves which have lost much of their Revolutionary meaning, and in the fact that Americans in the 1780s did not agree on the meaning or significance of the Second Amendment. Much of the fault lies in the polemical and presentist nature of the arguments and their attempts to influence the formulation of public policy. To reach an understanding of the origins of those words and concepts and the original understanding of the Second Amendment, therefore, requires an examination of the origins of those words and concepts and an analysis of the process of passing and ratifying the amendment.(1)[3]

To Englishmen in Great Britain and the colonies and to Americans after Independence, each phrase used in the Second Amendment had a definite meaning in constitutional, institutional, and ideological terms. The oldest concept, that of "militia," had a long and constitutionally complex history both as the institution by that name after is creation in the 1640s and as predecessor institutions which writers in the seventeenth and eighteenth century called "militia." In the widest sense each of these variations on "militia" played a major, even a predominant, role in the creation of the Second Amendment. To appreciate the significance of the "militia" in the 1780s therefore requires an examination of the medieval origins of the institution and ideas about military obligation. This review of medieval constitutional development will also dispel the myth that there existed a right to "bear" arms outside of the obligations of military and law enforcement service which some writers have perpetuated. The meaning of "militia" also requires an examination of the evolution of the institution in the American colonies and the political crises which centered on that institutional between colonies and crown. Because most historians dealing with the colonial militia have concentrated on its military and especially its wartime characteristics rather than its political and constitutional significance, a detailed treatment of the latter is necessary to show the full important of the institution to Americans. Finally the ideological concept of militia helps explain American attitudes toward the militia as a constitutional right. The concept was the product of a long history of writings on the proper function, composition, and values of armed citizens, especially in republics.[4] Since the end of the Roman Empire, writers had glorified the "citizen soldiers" who fought for love of country rather than money or individual glory and who, through his twin capacities as citizen and as soldier, insured the continuance of liberty in government and society. The classical tradition came into conjunction with the English militia tradition in the writings of James Harrington and his intellectual descendants in the second half of the seventeenth century, precisely in the context of two other developments which influenced Americans in the 1780s.

In the American colonies in the late seventeenth century, the king attempted to impose the English institutional form of the militia on the American defense systems. Only after a series of constitutional crises over American charter rights and the authority of the king and royal governors to modify colonial practices did the English model prevail, and they only in a modified version to meet American needs and objections. During the eighteenth century the American assemblies progressively weakened their governors' military power, often to the detriment of the military efficiency of the militia during wartime. By the end of the colonial period, the concept of militia signified a particular set of institutional characteristics, of military power relationships among the various segments of government, and of military obligations of adult male colonists. Although the Revolution required drastic legal alteration in some of these characteristics, the traditional colonial system reappeared during the War of Independence, greatly influencing both the advocates and opponents of the Second Amendment. Throughout this development, the ideological concepts of Harrington's descendants[5] gave Americans the language and assumptions with which to interpret the actions of the crown toward American governments and militias. By the 1760s colonists had a coherent system of ideas relating to militia and military power in general, as well as governmental power.

The second concept in the amendment, the right to "keep arms," grew out of the concept of militia and the ideological concept of arms in late seventeenth century England. James II attempted early in his reign to abolish the militia, later to neglect its training and to appoint Catholic officers to command it, and finally to disarm Anglican opponents of his rule. In each case James's actions threatened to eliminate the military potential of his opponents. In 1689 after James was deposed, members of Parliament included in the Declaration and Bill of Rights provisions concerning militia and arms. They declared that the king had violated English statues by allowing Catholics to hold military office, that disarming Anglicans without Parliamentary consent violated a fundamental right of Englishmen not to be taxed without their own or the consent of their representatives. Therefore, the Bill of Rights provided that "protestants" could "have arms" for "their defence" ("common defence" in the version of the House of Commons) according to their social rank and to the dictates of Parliament. In the 1760s and 1770s American looked back to this achievement of the Glorious Revolution for precedent and inspiration for creating the American rights of arms keeping and arms bearing.

The third concept, the right to "bear arms," was entirely an American innovation based upon English precedent and inference from the right to keep arms as well as Revolutionary military activity in the [6] 1770s. In order to overcome legal difficulties with using the colonial militia against the crown, Patriots created a "new militia." It was this institution which Americans defended in their Bills of Rights in 1776. George III and Parliament had declared that anyone who participated in the new militia was guilty of treason. Americans defended themselves by declaring that they had a right to serve in the militia and to bear arms in defense of themselves and their states. Massachusetts added the right to keep arms to its enunciation of the right to bear arms, explicitly bringing together English and American concepts.

When the Federal Constitution was ratified in 1787 and 1788, many American feared that the new government with the power to raise and support armies would overwhelm the state governments and destroy the liberties of individual citizens. Nationalists since the War of Independence had advocated reforming the militia systems of the states into a national militia under national control, modelled on the militia reform scheme which Parliament had adopted in 1757 which placed the militia in a subordinate and auxiliary position to the royal army. Ideological writings had taught many Americans the need to balance the power of the army with the power of the militia to protect liberty. Since liberty and power were natural opponents, the loss of the means to protect the one led inevitably to the victory of the other. Congress had disbanded the Continental Army in 1783 at the end of the war partly as a result of their discovery of the Newburgh Conspiracy to seize control of the government in order to settle the grievances of officers and to gain their back wages and future pensions. Nationalists, however, continued to advocate militia reforms, and in the Constitution [7] they gave Congress the potential for thoroughgoing reform. Their opponents in the states demanded as a condition of their ratification the inclusion of a Bill of Rights to define individual freedom. They naturally looked to the English Bill of Rights for the right to keep arms, to the American state bills in the 1770s for the rights of militia and of arms bearing, and to the ideology of militia for the general justification of the role of militia as a balance to the army. The Second Amendment thus was written with the language of the experience of the past century of constitutional crises, based on the assumptions of a particular political theory of government. The entire constitutional history of the militia and its predecessor institutions in England and America, the development of the right to keep arms in England, and the enunciation of the right to bear arms and the right of militia in America provided the original meaning of the Second Amendment to its initiators.

The Second Amendment, however, carried another, contradictory meaning which grew out of the political irrelevance and inapplicability of the anti-army assumptions of its initiators to the political system of the new Constitution. As Gordon Wood has convincingly demonstrated, the Constitution marked a profound departure from the understanding of the politics of 1776. The fundamental concepts of sovereignty, representation, and political power had been greatly modified by the experience of independence and the necessities of creating a national government. The states in 1787 stood in a different relationship to the federal government than the colonies did to King and Parliament. Sovereignty, political theorists found, resided in the people, not in an agency of [8] government such as Congress or the state legislatures. Government represented people in all its functions, executive, legislative, and judicial. People controlled power, in theory, not vice versa. Therefore, the militia no longer embodied the interests of the "people" against the "executive" interests of the army. The states no longer represented the interests of the people while Congress represented the interests of the states as entities in themselves. Both Congress and the states were concerned with individual interests; each was responsible to the same constituents. Likewise, the states no longer existed as the sole fount of popular sovereignty nor as the sole defender of their liberties. Under the Constitution, state and federal governments shared such attributes of sovereignty which the people delegated to them. Theoretically, therefore, one part of this constitutional system, whether state or militia, could not legitimately oppose another, whether Congress, President or army. Thus, as soon as the Second Amendment was ratified, it lost its original meaning (in the understanding of its proponents) in favor of another meaning which has clung to it since 1789.(2)

Although the political language and assumptions of the Second Amendment were anachronistic and irrelevant to the new federal system, the words "militia" and the "right to keep and bear arms" remained. Shorn of their older constitutional and ideological significance, they continued to express the point of view of fear and federal oppression and despotism. As the militia deteriorated in the century after the Militia Act of 1792 implemented the militia provision of the Constitution, the concepts lost their close association with each other.[9]

The evolution and transformation of the Second Amendment should be a caution against efforts to use the original understanding of constitutional concepts as guides for contemporary political decisions. The twentieth century has so generally lost the sense of the concepts of the eighteenth century as to make them anachronistic even in the most ideal circumstances. To impose them on the debate over gun control with its emotional elements further distort them from historical accuracy. Although both sides in this controversy have touched on parts of the truth, both have also twisted and misconstrued the original meaning.

A study of the original understanding is necessary in order to cut through this distortion and inaccuracy and to put the concepts, language, and assumptions of the eighteenth century into historical perspective. To do so requires an examination of the development of the concepts and institutions of the Second Amendment, especially the militia, the key concept and institution. Little work has been done on the legal, constitutional, and ideological aspects of the militia in either England or America. Most studies have dealt almost exclusively with the military characteristics, particularly in wartime. Because of this dearth of analysis, Chapter One, Three, Four, Five, Eight, and part of Ten deal in considerable detail with the constitutional history of the militia. Part of Chapter Two and most of Chapter Six deal with the ideological concept of militia which influenced American perceptions. The remaining chapters trace the constitutional development of the right to keep arms and the right to bear arms in England and America.(3)


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[SUMMARY, Part 2]
[SUMMARY, Part 3]
[CHAPTER SIX: Ideological Concepts of Militia and the Right of Self-Preservation]
[CHAPTER ELEVEN: The Bill of Rights, Militia, and the Right to Keep and Bear Arms, 1787-1791]
[12]

PART ONE
(Summary, chapters 1 - 2)

ORIGINS OF THE MILITIA AND THE RIGHT TO KEEP ARMS

The Glorious Revolution created the right to keep arms in reaction to James II's policy of neglecting the militia in favor of his army and of disarming the Anglican opponents of his rule. First enunciated in the Declaration of Rights and embodied in the statutory Bill of Rights in 1689, the right to keep arms grew out of the long-standing English concern for protecting the sanctity of property from the arbitrary power of the crown. It also arose from a commitment to the traditional and constitutional forces of the counties, whether in their mode as posse comitatus, as Trained Bands, or as Militia. The ideology of militia and arms, derived from the writings of the Classical Republicans, synthesized by James Harrington, and modified by the "Country" opponents of the "Court" faction in the 1670s and 1680s, provided additional influence for establishing the right to keep arms. These political and ideological activities had an additional significance. They affected the institutional, constitutional, and political concepts and practices of American colonies and revolutionaries in the following century, providing the starting point and partial justification for the creation of the right to bear arms in 1776 and 1789.


[TOP]
[BOTTOM]
[SUMMARY, Part 1]
[SUMMARY, Part 3]
[CHAPTER SIX: Ideological Concepts of Militia and the Right of Self-Preservation]
[CHAPTER ELEVEN: The Bill of Rights, Militia, and the Right to Keep and Bear Arms, 1787-1791]
[93]

PART TWO
(Summary, chapters 3 - 5)

ORIGINS OF THE COLONIAL MILITIA

When Englishmen settled in America, they naturally adopted the military practices of England. The period of development from 1607 at Jamestown until 1674 when the crown made its first efforts at reforming these practices witnessed the close emulation of military organization, officers, and structure of civil and political control in effect at home, especially after the Parliament seized control of English government in 1642 and the colonial governments in 1652. After the Restoration, these similarities became detrimental to imperial relations. When added to the military inefficiency of the colonies, reform became a necessity. In the royal colonies the crown simply ordered the governors to modify their defense systems. The charter colonies required charter revocation and governmental consolidation and royalization to achieve that result, and then not successfully. With the Glorious Revolution, however, reform hesitated only momentarily until propelled forward by the necessity of warfare. Under William and Mary and Anne, the charter colonies faced another attempt at "reunification," combined military commands, and Privy Council supervision of local affairs. The end of war in 1714 also ended reform measures. The colonial assemblies, particularly in the royal colonies, thereafter began their "quest for power" and made military authority a key goal. By 1765 almost every [94] colonial legislature had imposed statutory restrictions on their governors and had usurped by various means a large part of his military prerogative. By the eve of Revolution, therefore, the colonial militia systems were characterized by firm civil and legislative control with legislative rather than executive definition of military obligation and the terms of bearing arms.


[TOP]
[BOTTOM]
[SUMMARY, Part 1]
[SUMMARY, Part 2]
[CHAPTER SIX: Ideological Concepts of Militia and the Right of Self-Preservation]
[CHAPTER ELEVEN: The Bill of Rights, Militia, and the Right to Keep and Bear Arms, 1787-1791]
[214]

PART THREE
(Summary, chapters 6 - 11)

ORIGINS OF THE RIGHT TO BEAR ARMS

The right to bear arms— the classical Jus Militiae or right to serve in the army— grew out of the constitutional right to keep arms, the right of self-preservation, and the common law obligation of military and law enforcement service, all in the context of the American Revolution. Thoroughly indoctrinated with the principles of Country ideology and of Natural Rights philosophy, Americans looked to the colonial militia and posse comitatus to provide them with the means of opposing the British army after the occupation of Boston in 1765. When Parliament condemned such measures taken by Bostonians, Patriot reiterated the constitutional right to keep arms. When active military resistance became necessary after 1774, Patriots abandoned the old institutions in favor of a "new militia" of volunteers. When King and Parliament in turn condemned these measures as treasonous, Patriots incorporated the Jus Militiae into their state bills of rights in 1776 as either the right of militia or the right to bear arms, in justification of their revolutionary actions. During the war, the ideological concept of the citizen soldier lost its exclusive identification with the militia: the militia had failed as an effective operational device, compulsory service had been reimposed, and the idea of a citizen army had begun to take shape. The development of this opposing theory had its culmination in the Federal Constitution of 1787 which provided [215] nationalists with the potential to reform the militia into a modernized reserve force and auxiliary to the army. The Antifederalists opponents of consolidated governmental and military power demanded a guarantee in a federal bill of rights of Jus Militiae against potential despotism by the federal "standing army," the ancient nemesis of militia and free government. They got recognition of this right of militia and of arms and arms bearing in the Second Amendment, proposed formally in Congress in 1789 and ratified by the states in 1791.


[SUMMARY, Part 1]
[SUMMARY, Part 2]
[SUMMARY, Part 3]
[CHAPTER SIX: Ideological Concepts of Militia and the Right of Self-Preservation]
[CHAPTER ELEVEN: The Bill of Rights, Militia, and the Right to Keep and Bear Arms, 1787-1791]

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