The Potowmack Institute
Controlling the Revolutionary Militia
Militia Acts of May 2 and May 8, 1792,
Militia Act of the Commonwealth of Massachusetts, June 22, 1793 (excerpts)
asamicus curiae in
US v Emerson (1999)
The Rule of Law
The National Rifle Association
What does the NRA want?
The National Rifle Association
Charlton Heston Speaks
The Founders and the AK47
The NRA's "armed citizen guerrillas" "outflank", Wash. Post 7/6/89
The Washington Post
Getting Commitment from Congress
The blood on their doorstep
The Libertarian Fantasy on the Supreme Court
Thomas and Scalia
Joyce Lee Malcolm
Ayn Rand, Blackstone
"Palladium of the Liberties"
The 2nd Am. in Court
John Kenneth Rowland
LaPierre's List and the Law Reviews
The Declaration of Independence
states that governments deriving their just powers from the
consent of the governed are instituted among men to secure
certain unalienable rights; and, that when government fails to
deliver, the people have a right to alter or abolish that
government and establish a new government that will better secure
their rights. In this circumstance, according to the Declaration
of Independence, the people institute a new government. They do
not institute anarchy.
In 1774, when the King George sent the British army to occupy Boston, the colonists in and around Boston were outraged and spontaneously set upon a course of resistance. Other port cities who feared that they would become similarly occupied also organized for resistance. The colonial militias which had been commanded by the royal governors and had owed allegiance to King George, repudiated their allegiance to royal authority and initiated a struggle to establish a new sovereign government. They enjoyed popular support from the people as the letter from Joseph Warren to John Adams, May, 1775, describes. At the same time, there was concern to begin the framework of a new civil authority, a "new government," that would control the militia. Military force outside of civilian control violated the English common law tradition and the British Constitution. The colonists in the 1770s made revolution to uphold the British Constitution which they believed King George and Parliament had subverted. Subsequent to Warren's letter the Continental Congress resolved on July 18, 1775, that the Revolutionary Militias be subordinated to the authority of the Revolutionary Assemblies in their respective states and that each colony appoint a committee of safety, to superintend and direct all matters necessary for the security and defense of their respective colonies, when the assemblies were not in session to act. By subordinating the militias to the civilian control of the revolutionary assemblies and committees of safety, appointed by the assemblies, by instructing that officers above the rank of captain be appointed by the assemblies or the committees of safety, and by establishing uniform standards for weapons provisions, the Continental Congress established a system of command that was subordinate to civilian authority and began the process of creating new structures of civilian government. There is no implication in these resolves that the militia was a contingency of extralegal armed force whose function was to maintain a balance of power against any and all government or, as in Stephen Halbrook's theory of "libertarian republicanism," that the militiamen had to be armed first before they could consent to be governed.
The American Revolutionaries had a revolution that enjoyed a critical mass of popular support that was willing to make sacrifices to win the struggle for a new sovereign government. Once the Revolution was won, the new government, deriving its just power from the consent of the people to be governed, was concerned to maintain its sovereignty. The First Congress (1789-91) had ratified the Second Amendment. The Second Congress (1791-93), composed of many of the same representatives, enacted the Militia Acts of 1792. There were two Militia Acts. One on May 2, 1792, which defined that authority of the President as Commander in Chief, to call out the militia and the other on May 8 provided for the organization of the militia and the national requirement for the states to meet. The Militia Acts of 1792 make no mention that the Constitution in the Second Amendment guarantees an individual right to "armed citizen guerrillas" to maintain their muskets outside of accountability to public authority so they can outflank the newly created government. The militia of 1792 was accountable to public authority as had been the royal militia of 1774. The militiamen were on a registry and if they did not show up for muster when called they were fined. This point is conceded by the gun lobby's own commentators when they are being intellectually honest. See MacNutt in Militias: Training for Doomsday..." and Kates in the .../196lrev.html.
Excerpts from the Massachusetts Militia Act of 1793 are even more detailed enactment at the state level to enforce compliance with the federal Militia Acts. It is very clear from the Massachusetts acts that the militiamen and their weapons and other equipment were enrolled and registered with the state authorities. Detailed lists were maintained. Fines were specified for noncompliance. All of the original thirteen states enacted similar militia acts which were revised and reenacted through the early decades of the nineteenth century. Privately owned weapons were regarded as a national resource to be called up when needed for a public purpose. As the Federalists expected, the militia would die out because it was a useless as a military force and difficult to enforce on the people. An emerging modern nation needed a modern military force. Also, it served no theoretical purpose as it had under the British Constitution (.../1197row.html).
Like the resolutions of the Continental Congress, the national Militia Acts and the Massachusetts Militia Act make no mention of the sedentary militia as a contingency of extralegal armed force whereby the private individuals could maintain a balance of power with any and all government. After the rebellions of the 1780s when the Articles of Confederate provided no power to insure domestic tranquility, Congress established in the Militia Acts of 1792 authority to suppress such activity. The Militia Act of May 2, 1792, even implicitly acknowledged that a state militia itself might be in rebellion and goes so far as to say that if the militia in a given state shall refuse orders from the President of the United States, the militia from a neighboring state shall be called in to control the situation. It provides for court martial and penalties for militiamen and officers who refuse orders. The militia was a system of command and obedience. It was the instrument of sovereign government and was authorized by law as is abundantly clear in the language of the acts below. The eighteenth century militia contained no individual sovereigns.
To illustrate the ignorance and absurdity of how history is used and misused in contemporary political consciousness we can look at HR 1147 introduced in the US House of Representatives, March 20, 1997, called the "Second Amendment Restoration Act of 1997," by Mr. Ron Paul (R-TX, Congress' own libertarian fantast who, now a Republican, was the Libertarian Party candidate for President in 1988). The bill will repeal restrictions on large capacity ammunition feeding devices.
Sec. 2 FINDINGS.
The militia was a state maintained military force that could be called into service to enforce the laws of the Union and to insure domestic tranquility. The "populace capable of bearing arms" was conscripted that is, "coerced" in libertarian consciousness into service, commanded by officers, subject to military justice, but ultimately under civilian control as authorized by law. The severe imposition on the men capable of bearing arms in those days was not something Ron Paul would want his libertarian brethren subjected to today. Obedience was a political virtue in the eighteenth century. "To bear arms" was a military function. There are no individualists in a military organization. The larger context of the Second Amendment was the republican jus militiae, the right of the people to participate in the military functions of the state as citizen soldiers rather than leave those functions up to the regular army, a separate order of the state, which in the eighteenth century was usually composed of mercenaries, foreigners, and/or social misfits.
HR 1147 quotes the Senate Subcommittee on the Constitution's Report, "Second Amendment Right to Keep and Bear Arms," (1982) as its source. HR 1147 does not explain that when Republicans gained control of the Senate in the 1980 election one of the orders of business was to produce a basic NRA tract that could be referred to as an impartial, authoritative study under the imprimatur of the Senate Judiciary Committee as if Orrin Hatch and Strom Thurmond ever did anything impartial in their careers and as if Senate committees, not the courts, decide the contours of constitutional rights. Mary Jolly the Judiciary Committee staff director who wrote the report and assembled the documents left the Judiciary Committee immediately to take employment as an NRA lobbyist. The Framers of the Constitution created the judiciary branch of government to protect the people from the excesses of the legislative branch. However, they provided no mechanism to protect the people when the legislative branch fails to exercise its powers to maintain the sovereignty of the legal institutions of government.
The right to revolution is the collective right of a whole people to alter or abolish a remote, oppressive, unresponsive government. The Declaration of Independence was written in the context that the rulers and the ruled were separate estates of the realm. The Constitution of the United States created the wholly new political concept that the rulers and the ruled were one and the same. The rulers became the ruled and the ruled the rulers. The Constitution of the United Stated created mechanisms for peaceful fundamental political change, mechanisms that had not existed under the British Constitution. Those mechanisms minimized to near nonexistence any right of armed resistance to legitimate authority. The burden of citizenship became to effect change by participating in legal political processes. The sovereignty of the rule of law inhered in the civic consciousness of the citizens. The Constitution of the United States did not establish a right to armed resistance of disaffected private sovereign individuals acting out some childish fantasy. The great danger in our present political circumstance is that there is no political leadership to make that simple point.
Controlling the Revolutionary Militia
Militia Acts of May 2 and May 8, 1792,
Militia Act of the Commonwealth of
Massachusetts, June 22, 1793 (excerpts)
[PotowmackForum], interactive posting