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Last revised 10/05/06
David Yassky, “The Second Amendment: Structure, History, and Constitutional Change,” 99 Mich. L. Rev. 588 (Dec, 2000) gives a different perspective on Friedman's article below. The Fourteenth Amendment changed the relationship between the citizen and national government and made national conscription constitutionally possible. The Supreme Court, however, in the Selective Draft Law cases during and after the First World War did not use that Fourteenth Amendment argument.

Hummel, Jeffrey Rogers, "The American Militia and the Origin of Conscription: A Reassessment," is long, very informative article on the historic background of conscription. It comes from an ironic source:
Journal of Libertarian Studies, 15 (Fall 2001), 29–77.
Search Google for "TAMOC:AR origin conscription" for HTML version.
Hummel did the research and was apparently disappointed to discover that the right of the people to keep and bear arms was about conscription not a civil right of private individuals.

See arguments in Parker et al. v. DC Gov. at present in DC federal court.
Oral arguments are scheduled Nov. 13, 2006, in the Prettyman Federal Court Building. Anyone can attend.


Michigan Law Review, June, 1969
©1969 Michigan Law Review. Used with permission.

Leon Friedman
*B.A. 1954, LL.B. 1960, Harvard University

Potowmack Institute: The paper below was written in a different time and for a different purpose from present discussions regarding gun ownership, gun rights and gun violence. For that reason it provides a valuable perspective on the original meaning of the Second Amendment, the institutional context of the 18th century militia, and the practices of the United States from the early republic through the nineteenth century.

The Selective Service Act of 1917 was one of at least four great transformations in the twentieth century that made the United States into a modern nation state. (The other three were: 1. the Sixteenth Amendment (1912) which made taxing income constitutional and gave the government its modern taxing power, 2. The expansion of federal authority under the New Deal to regulate financial and labor markets in the 1930s, 3. the civil right revolution, 1920s-1960s, which established and enforced national standards for the protection of civil liberties. The libertarian fantasy's revolt against the modern state and the parallel agenda of our present rightwing movement would undo all of these.) As Friedman makes clear, before the First World War there had been no serious practice of the Federal Government to register and conscript young men directly into the regular army of the United States. Conscript duty historically had only applied to militia duty. The regular army was based on voluntary enlistments. The militia and the regular army were two very distinct institutions which served different purposes. They were both, however, organized armed forces. To "bear arms" describes a military function. The words have absolutely no relationship to the civil rights of private individuals outside of an institutional context. The historical, constitutional, and ideological significance of the Selective Service Act of 1917 and the Supreme Court decisions that made it constitutional was to combine the historical concept of the citizen-soldier manifest in the militia with the professional soldier of the regular army. In the twentieth century we have characterized our armed forces as being composed of citizen-soldiers and been proud of their contribution and performance as such.

The National Rifle Association in some of its literature describes itself as a virtual auxiliary to the armed forces of the United States, but the historical militia had always been understood as part of an institutional constitutional balance between an armed populace in the state militias and the regular army. The armed populace, however, was not a populace of armed individuals armed outside of any law or accountability to public authority in a balance of power against any and all government as the NRA and its libertarian allies assert now. It was a locally based and locally organized military institution. By the 1830s the conscript militia had died a natural death. (See .../nratanya.html.) If the gun lobby wants to have an individual right to be armed outside of accountability to public authority it can proclaim that right, lobby for it, and argue for it in court, but it cannot claim the Second Amendment and Militia Act of 1792 as its authority and precedent. See Houston v. Moore (1820) and Martin v. Mott (1827) for context. Any claim for Second Amendment rights today would have to resurrect not only the militia institution in which the right was expressed but the very antilibertarian practice of conscription. What the gun lobby has done is invent a very contemporary armed populace fantasy that is integral to a very contemporary rightwing movment out of a very dishonest reading of historical concepts and practices.

Friedman's purpose was to develop arguments in opposition to national conscription during the Vietnam War. It is ironic that Friedman's analysis actually supports the libertarian ideology of our present rightwing movement in that it delegitimizes and would remove from the Federal Government one of the most important characteristics of a modern state. See Yassky article above.

Other historical works include:
John Kenneth Rowland, .../1197row.html, previously unpublished PhD dissertation, Ohio State, 1978.
John Kenneth Rowland, Appendix A, US v. Emerson,
Lawrence Cress, "An Armed Community: The Origins and the Meaning of the Right to Bear Arms," J. Am. Hist., 1984.
Don Higginbotham, "The Second Amendment in Historical Context",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

See our Resources File for more.

Other Potowmack Institute files that treat this subject:
What does the NRA want?
Charlton Heston Speaks
The Rule of Law
The Libertarian Fantasy on the Supreme Court

Mich. Law Rev., 1969: This Article is based upon a study which was prepared for the New York Civil Liberties Union as a basic memorandum on the military clauses of the Constitution. Its purpose was to show that the Military Selective Service Act of 1967 is unconstitutional since it exceeds the powers granted to the federal government. This Article does not purport to examine the desirability or undesirability of any system of federal conscription; it attempts only to marshal the available historical evidence to demonstrate that the framers of the Constitution did not intend to grant Congress the power to conscript.

The author wishes to acknowledge the editorial suggestions of Alan H. Levine of the New York Civil Liberties Union, and the invaluable assistance in researching and preparing this Article provided by Edwin G. Burrows, David Osher, and Dennis Van Essendelft, of the Columbia University Graduate Department of History.

FIRST PART (this file), 46K




IV. The Nation's Military History Under the Constitution



[Footnotes are in ( ).
Footnote texts are omitted.]

The general words of the Constitution— famous phrases such as "due process," "freedom of speech," "interstate commerce," and "raise and support armies"— are not self-evident concepts. As Justice Frankfurter said, "The language of the [Constitution] is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them. Not what words did Madison and Hamilton use, but what was it in their minds which they conveyed?(1) While the framers obviously could not have foreseen the discovery of electromagnetic radio waves or atomic energy, and had no "intent" concerning the regulation of television stations or uranium piles. they knew only too well the dangers of a professional army and the need for training and mobilizing the citizens for defense. They considered these problems in more detail than those of virtually any other governmental function, and thus the plans they made for our nation s military forces deserve detailed inquiry. Such a study reveals that the military structure presently existing in the United States, which depends primarily upon direct conscription of citizens into the federal army, fails to meet the standards established by the framers of the Constitution in 1787.

Arguments about conscription produce rather strange alliances. The left has traditionally opposed the draft on the grounds that it violates the conscientious beliefs of those opposed to war, compels participation in military adventures against reform movements throughout the world, and generally lays the heavy hand of government too forcefully on the shoulders of every citizen. The continuing viability of this tradition is exemplified by Senator Mark Hatfield's recent assertion that a volunteer army would preserve individual liberty and freedom as much as possible from unjustified security with the greatest efficiency and economy.(2) The far right also has frequently called for a volunteer army, but for markedly different reasons. Many conservatives and military men prefer a professional army since regulars are more easily trained and controlled, and a permanent corps is more efficient in the long run because of the lower turn-over in personnel. Such a professional force also fits traditional elitist ideas held by the right about the organization of society.

Others have argued that a federal draft is necessary not only to mobilize the nation's manpower most efficiently in an emergency, but also to serve as a check upon military adventures that offend the political conscience of the country. While a volunteer army would necessarily be "composed of the poor and the black,"(3) a conscripted army is made up of all classes. And, to the extent that the sons of the middle class are unwilling hostages of the military, their parents will want to know exactly where they will be sent and why. Opposition to the Vietnam War seems to be growing even among the traditionally conservative areas of the Midwest for precisely this reason. President Nixon, who reads the political pulse very clearly, has pressed for an end to the war and an end to the draft(4) because he is aware of these sentiments.

Thus, the basic organization of our military forces involves problems that are crucial to the democratic process. The worries and concerns that troubled the framers of the Constitution are still with us, and, as the debate on the draft continues, another look backward may be worthwhile.



A. Background of the Cases

In the 1918 decision of the Selective Draft Law Cases (Arver v. United States),(5) the United States Supreme Court first upheld the constitutionality of congressional conscription. These decisions have never been seriously challenged, and have been cited repeatedly as determining that question once and for all time. This Article will attempt to show that the Selective Draft Law Cases were based upon superficial arguments, disregard of substantial historical evidence, and undue deference to the exigencies of the First World War— in short, that they were incorrectly decided.

The cases arose in the midst of World War 1 and were decided only eight months after passage of the 1917 draft law.(6) The Selective Draft Act had been signed into law on May 18, 1917, and June 5 was set as registration day for all young men of draft age. Two who refused to register were Joseph F. Arver and Otto H. Wangerin; they were indicted on June 8, 1917, tried the following month before a United States district court in Minnesota, found guilty, and sentenced to one year in prison. The Supreme Court granted a writ of error directly to the trial court,(7) and argument was presented on December 13 and 14, 1917, along with the cases of other draft resisters from New York. At the same time the Court heard the appeals of Alexander Berkman and Emma Goldman,(8) two noted anarchist leaders who had been found guilty of conspiring to counsel resistance to the draft law in New York, and the appeals of Charles E. Ruthenberg, Alfred Wagenknecht, and Charles Baker, prominent Ohio Socialists who were convicted of encouraging a young man not to register.(9)

In asserting the invalidity of the draft, the defendants pressed two primary arguments: that the thirteenth amendment's prohibition of involuntary servitude deprived Congress of any power to conscript; and that the draft conflicted with the militia clauses of the Constitution since the federal government had effectively destroyed the state forces by drawing all the members of the state militia into federal service and shipping them overseas. In the course of their argument, the defendants traced the history of English military organization, emphasizing that no general conscription law had been passed in England prior to the twentieth century. They also claimed that the acts and regulations of the draft unlawfully delegated legislative authority to the President. The Government's case was argued by John W. Davis, then Solicitor General, later Democratic presidential candidate, and one of the greatest advocates ever to practice before the Supreme Court. Davis submitted a joint brief for all of the cases, and Chief Justice Edward White carefully followed it in his opinion upholding the law Davis characterized the power to conscript as an essential attribute of sovereignty. He cited the large number of nations enforcing compulsory military service in 1917, concluding: "It would be a contradiction in terms to declare the Government of the United States a sovereign, endowed with all the powers necessary for its existence, yet lacking in the most essential of all the power or self-defense."(10) The Government also cited the many colonial and state laws in force before 1787— almost 200 were listed— calling for compulsory militia service by all male citizens. Davis argued that the fact that a federal draft was proposed (although not passed) in 1814 and the fact that a conscription law was enacted during the Civil War showed the practical exercise of the power and was therefore a recognition of it.

Nor were the militia clauses of the Constitution(11) relevant, he claimed, since men were taken directly into a federal army by the l917 law rather than as members of a federalized state militia. Finally, the Government dismissed the thirteenth amendment argument by pointing out that the sole purpose of the amendment was to abolish chattel slavery, not to eliminate compulsory governmental service.

Surprisingly, none of the parties in the Selective Draft Law Case relied to any extent on precedent or history. There had been a few remarks about conscription in earlier federal cases,(12) and a Pennsylvania Supreme Court case, Kneedler v. Lane,(13) had upheld the Civil War draft. But no Supreme Court decision that was on point had ever been handed down. Even though the government's brief was 137 pages long, only three pages were devoted to the Constitutional Convention of 1787 and to the various state ratifying conventions while an additional three pages contained citations from The Federalist Papers. Yet these sources are traditionally the most important aid to constitutional interpretation. Moreover, the petitioners briefs in Arver discussed the same subject matter in only one paragraph. Thus, the Court was deprived of the most crucial materials on which to base its decision.

The Supreme Court's unanimous opinion upholding the conscription law followed the government's presentation closely. In essence, Chief Justice White found that the constitutional provisions granting Congress power "to declare war"(14) and "to raise and support armies,"(15) combined with the necessary and proper clause, permitted the Government to draft citizens directly into a federal army.(16)

The Chief Justice's opinion placed principal reliance on five points. (1) The constitutional language allowing Congress to raise armies permitted a compulsory draft, since Congress must have the power to procure men by any means for those armies. (2) All nations as attributes of sovereignty have the right to conscript. (3) The English had compelled military service throughout their history. (4) The colonies had also used conscription into the militia. (5) The Continental Congress' lack of power to raise and control its own army was one of the reasons for the formation of the new Constitution. The Court then went beyond the Federalist period and noted that in l814 Secretary of War James Monroe had proposed a plan for conscription, and that a conscription law had been passed during the Civil War. An analysis of each constituent part of the Court's opinion shows how the political pressures of World War I produced a chain of errors in this most crucial case concerning the federal government's relationship to its citizens.


B. Constitutional Language

Chief Justice White began his opinion by quoting the various military clauses in the Constitution. He then wrote:

However, as shown below,(18) the proposed grant of power to raise a federal army by any means was questioned or opposed by a substantial political group when the Constitution was submitted for ratification. The Antifederalists did not wish a standing army of any kind to be established by the central government; thus the bare power to enlist a military force was significant in terms of the Confederation experience and in terms of the restrictions suggested by the critics of the Constitution. Furthermore, none of the federal government's enumerated powers can be exercised "without the men to compose" the offices involved. Did the grant of authority "to establish Post Offices" carry with it the power to conscript postmen? Does the power to "coin money" include the power to conscript employees for the mint? Without the specific grants in article I, Congress might not be able to expend public monies to build post offices or mints or to buy arms, and might not even be able to pay its employees in these branches of government. But no one ever suggested before the Arver case that any other enumerated power included authority to compel service in the governmental organization involved.


C. Universality of Conscription

To show that compulsory service was required by the Constitution, the Court noted that in 1918 most of the nations of the world had compulsory military service.(19) However, the fact that every other nation in the world may have enforced conscription during World War I is irrelevant if the framers of the Constitution did not grant Congress that power. The United States may be the only nation with an electoral college system of choosing its chief executive or with a federal system with prohibitions on local interference with interstate commerce. The fact that virtually every other jurisdiction in the world permits the use of illegally seized evidence in criminal trials is of no relevance when an interpretation of our Constitution is at issue.

Compulsory military service was not enacted in any modem nation until more than ten years after the ratification of the Constitution. A leading authority on conscription has described it as "something characteristically modern [which] occurred for the first time in France [in] 1798."(20) Moreover, to argue that the Constitution does not permit a draft does not deny the "obligation of the citizen to render military service in case of need and the right to compel it." The framers knew that the nation's manpower might have to lie marshaled in an emergency; but, as shown below, the system they selected was one requiring mobilization through the state militia system, not direct conscription into a federal army. Finally, at present, a much smaller group of nations enforces direct conscription than did in 1918; for example, Great Britain, Canada, India, and Pakistan do not have a direct draft today.(21) But clearly the Constitution does not change as a larger or smaller number of foreign states pass laws on military service, and thus the Arver Court's reliance on the universality of conscription is at best marginally relevant.


D. The English Experience

The next argument advanced in the Selective Draft Law Cases was drawn from the military history of Great Britain. In one rather terse paragraph, the Court concluded:

To cite the English experience before the Norman Conquest as a precedent for the American Constitution is far fetched at the very least. Similarly, the fact that the English Service Act of 1916 may have compelled service abroad has little relevance to the intention of the framers in 1787. But, ignoring these difficulties, the Court leaped over a thousand years of English history in a few brief sentences and disregarded the crucial period preceding the Revolutionary War. The latter omission is particularly unfortunate, for an examination of the relevant historical period clearly demonstrates that during colonial times the regular army forces in England were always composed of volunteers.

In Cromwell's time, the Levellers and other republican supporters had demanded specific protection against conscription as part of the basic freedoms of all Englishmen. The original "Agreement of the People" presented to the Council of the Army in 1647 contained a section which proclaimed that "constraining any of us to serve in the wars is against our freedom; and therefore we do not allow it in our Representatives."(23

The Agreement of the People which was finally passed by the House of Commons in 1648 specifically provided:

The behavior of Cromwell's troops in suppressing Parliament and taking command of the government proved to later commentators that a standing military force, independent of legislative control, was the most dangerous enemy of liberty. John Trenchard, one of the great liberal pamphleteers and an important influence on American colonial thought, wrote in 1698 that Cromwell's reign was

Trenchard described the subsequent excesses of Charles II's time— the bribery of Parliament, the dissolution of the municipal corporations, the defiance of the Constitution— as a direct outgrowth of the king's control of a professional army.(26) Seizing upon the pretext of a war with Holland, Charles raised a force of 12,000 men but kept half of them near London so that they would be available for use against the legislative leaders. When the House of Commons ordered the Army disbanded, Charles dissolved Parliament; a new house again voted to disperse the army, and passed a resolution stating that "the continuance of any Standing Forces in this Nation other than the Militia, was illegal, and a great Grievance and Vexation to the People."(27)

Charles' successor, James II, continued the effort to maintain his own armed forces. When the Duke of Monmouth attempted to overthrow him in 1685, James increased the army to 15,000 men and later 30,000. To strengthen his position against Parliament, he sought allies among the Protestant dissenters and filled the army with Irish Catholics until they constituted about one third of his total forces. According to Trenchard, James "violated the Rights of the People, fell out with the Church of England, made uncertain Friends of the Dissenters and disobliged his own Army; by which means they all united against him."(28) William of Orange and Mary ascended to the English throne in 1689, and shortly thereafter Parliament passed a Declaration of Rights, the basic Bill of Rights in the English Constitution. The sixth article of the Declaration stated: "That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law."(29) Trenchard's view, however, even William went too far in organizing his army. War in Ireland led Parliament to grant the king 50,000 men and Trenchard wrote: "I will venture to say, that if this Army does not make us Slaves, we are the only People upon Earth in such Circumstances that ever escaped it, with the 4th part of their number."(30)

John Trenchard and his later collaborator Thomas Gordon were significant transmitters of English liberal thought to the colonies. Historian Bernard Bailyn wrote of the English "coffeehouse radicals":

The overreachings of Cromwell, Charles II, and James II through their control of standing armies were prominent in the minds of the colonists as examples of the destruction of freedom; as Trenchard had written, "in no Country, Liberty and an Army stand together; so that to know whether a People are Free or Slaves, it is necessary only to ask, whether there is an Army kept amongst them."(32) The answer to this threat lay in a militia system in which the "Nobility and chief Gentry of England are the Commanders, and the Body of it made up of the Freeholders, their Sons and Servants."(33) To Englishmen who shared this belief that a professional army was an instrument of tyranny, the idea of direct conscription into that force was unthinkable.

Proposals to conscript for the regular Army were advanced in Parliament in 1704 and 1707, but were rejected.(34) Moreover, under the military laws passed in 1756, (35) 1757,(36) 1778,(37) and 1779,(38) only idle and disorderly persons were pressed into service, and then only as punishment. This too was strongly condemned. It is true that compulsory service for the British militia system was theoretically established during this period; the act of 1757 provided an elaborate structure for choosing the militia on a territorial basis.(39) However, an extensive system of exemptions or substitutes made it extremely unlikely that a nonvolunteer would be taken. Professor J. R. Western, the leading expert on the English militia system, has noted:

Professor Western also points out that a great many Englishmen found compulsory military service so "profoundly distasteful" that there were numerous riots against service in the militia after passage of the act of 1757, but that popular unrest abated when it became understood that the law could be avoided and "real conscription was not to be introduced."(41) This strong popular opposition to conscription occurred despite the fact that the English militia acts specifically provided that no militiamen would be forced to serve abroad and that only a limited amount of service was required at home.(42) Nonetheless popular hostility to military service was widespread and the people's aversion to forced military service, even in the militia, continued for many years.

The American colonial leaders were steeped in this anti-military tradition; the available evidence indicates that they were extremely sensitive to the dangers of a professional army and that they saw clearly the distinction between regular forces and the armed citizenry composing the militia. They were also conscious of the fact that no general compulsory conscription law for the regular army was in force in England during the eighteenth century.



E. The Colonial Militia

After discussing the English experience, the Supreme Court in the Selective Draft Law Case cited the colonial militia system as a precedent for conscription:

However, the colonial militia system has only the most tenuous connection to any modern conscription program. In the first place, the militia was thought of as the armed citizenry as a whole; that is, every able-bodied man was expected to own a weapon and to use it for the protection of his colony. Second, the primary duty expected of each militiaman was merely that he enroll, arm, muster, and attend periodic general training sessions.(44) This system hardly qualifies as a precedent for forced conscription of a citizen for an uninterrupted period in a regular army.

As Professor Russell F. Weigley points out, a distinction soon developed between the "Common Militia"— the entire population of able-bodied men— and the "Volunteer Militia" which in fact performed the functions required of an armed force:

The Selective Service System in its 1947 monograph The Backgrounds of Selective Service attempted to expand the Arver opinion's collection of compulsory colonial laws, citing hundreds of statutes which it claimed were precedents for federal conscription. But the laws show that the only element of compulsion in the colonial militia related to mustering and training. The training itself was often extremely lax, except in times of emergency.(46) Furthermore, most of the colonial statutes requiring periods of actual military service rather than mere training stipulated that the power existed only for defensive purposes. The Virginia statutes, for example, provided that men could be raised only in case of attack or upon certain knowledge of Indian presence.(47)

Initially, most of the colonial laws restricted militia service to duty within the colony except in emergency situations, when the governor could permit service outside the borders for limited purposes.(48) In later years the laws restricted to nonfreeholders compulsory service which would lead to expeditions outside the colony. A Virginia law passed in 1752 (49) gave the colony power to levy vagrants or nonvoters, but no person who had a right to vote could be forced, to serve outside Virginia. A later Virginia statute(50) also provided that only vagrants and the unemployed could be impressed for service beyond the borders of the colony. This restriction was congruent with the English practice, which made the militia strictly a county force except in time of invasion and excluded all peacetime service outside the immediate borders of the organizing province.

The Massachusetts laws were comparable. Special legislation was necessary to permit service outside the colony,(51) and service was required only against an "attempt or enterprize [at] the destruction or invasion, detriment or annoyance of our province."(52) Similarly, South Carolina passed a law in 1778 permitting "all idle, lewd, disorderly men," "sturdy beggars," and "vagrants" to go out of the state into the Continental Army ranks to fill the state's quotas.(53)

In many states personal service from each citizen was not required. Liberal laws existed which provided for either substitution or payment of a small fine in lieu of service. For example, in Massachusetts there were five laws passed between 1740 and 1781 allowing a man to arrange for a substitute to take his place in the militia.(54) Other states, including Connecticut, Virginia, and New York, passed legislation providing for a small fine which freed citizens from virtually all forms of militia service. This practice became increasingly frequent in later years of the colonial period.(55)

By the 1750 s and the 1760 s the need for even minimal universal training of all the males of the colonies had receded, and the trend was away from any kind of compulsion. No fewer than nine states abandoned compulsory military establishments in this period.(56) The fact that vagrants and the unemployed were swelling the ranks of the militia, as they had filled the ranks of the British standing army following the statute of 1756, made military service less and less desirable. A recent commentator has noted:

Only during the emergency of the Revolution was this trend reversed and compulsory service reintroduced. But every effort was made to fill the Continental Army quotas with nonvoters and nonfreeholders.

Thus, the colonial experience showed only that (1) the primary compulsory aspect of the militia was the requirement to train; (2) the militia was fundamentally a defensive force; (3) continuous service was required solely during periods of emergency; (4) service outside the colony was for outcasts only; and (5) the trend was away from compulsion in the years preceding the Revolution. It is therefore not surprising that the Selective Service System was obliged to admit that the "evidence reveals no preconstitutional systems valuable as models" for a universal draft.(58)


F. Formation of the Constitution

Another proposition which the Supreme Court relied upon to uphold the constitutionality of the draft related to the creation of a new government in 1787. The Court noted:

This statement, however, completely jumbles a very complicated political process which began before the Revolution. The experience of the nation during the war and the dangers which the Constitution-makers were concerned about cannot be telescoped in the offhand way that the Court attempted in the Selective Draft Law Cases. A more detailed analysis of that period is necessary.




IV. The Nation's Military History Under the Constitution

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