I was sitting with friends from college days when the conversation turned serious. We had been eschewing all things political for a while to avoid overheated discussion, but gun control had raised its head once more. We wanted to refer to the second amendment but needed to know exactly what its wording in order to argue points about it.
With cellphones at hand, this sort of thing is always easy to answer. The second Amendment says “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 infringed¹.” That’s how it’s worded, but what does it mean? Legal scholars argue about the exact relations between the first half, “A well-regulated Militia, being necessary to the security of a free State” and the second half, “the right of the people to keep and bear Arms, shall not be infringed.” I don’t expect to shed new light on that issue. But in doing some homework on the history of the second amendment, I myself didn’t have a good picture of the “militia” that the founders were thinking of.
The American colonial experience had created distrust of power among many of our founding fathers. Originally, colonists were often tempted to settle in the new world by promises of tax exemption for a time. But as time past and the British themselves bore most of the high cost of the French and Indian War, they began to levy taxes, first on imports into the colonies and then directly on the colonists. The Stamp Act of 1765 taxed paper colonists used. This included newspapers, and every legal and commercial document they wrote. When colonists resisted paying tax for the stamp that would allow them to use their documents, they were pursued by British customs inspectors who held writs of assistance granted to them by Parliament. The writs allowed them to enter colonists’ homes and search through all their belongings looking for contraband, even when the agents had no evidence at all that unstamped materials were in their possession.
After the Revolutionary War, the Federalists focused on the responsibilities of the states and their citizens in creating and maintaining their own government. But the anti-Federalists feared granting the new American government too much power and at the beginning of 1879 only 11 states had signed on to be part of the new union. The Federalists realized that they needed to reassure the anti-Federalists. Therefore in 1789, they agreed to a proposal amending the new government’s constitution by spelling out what became the Bill of Rights.
The second of the ten amendments, ratified by ¾ of the state legislatures, includes the word militia. “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.” A standing army is a corps of professional soldiers. States in the union would not have standing armies, but they would be authorized to call upon militias. A militia is an army of citizens that can be convened to respond to emergencies. After the crisis is resolved, the men (only able-bodied, adult males in that time) returned to their ordinary lives and professions.
But who today knows that at the time of the Bill of Rights, state militias (like colonial militias before them) wasn’t expected to all arrive an armory, where government weapons were stored? Instead they were expected to arrive at their local assembly points with the weapons and ammunition, which they kept in at home, in hand. The picture above shows members of the New York State militia. Here is the language the New York legislature used to authorize the militia of 1786.
“Every male able bodied citizen shall enroll in …(his local company, and) every Citizen so enrolled and notified shall, within three Months provide himself, at his own Expense, with a good Musket or Firelock, a sufficient Bayonet and Belt, a Pouch with a Box therein to contain not less than Twenty-four Cartridges suited to the Bore of his Musket or Firelock, each Cartridge containing a proper Quantity of Powder and Ball, two spare Flints, a Blanket and Knapsack; . . .²” It’s not the National Guard that we know now, is it?
So if we today are taken by surprise with what they actually wrote, how do you think any one of the founding fathers would react to the issues of its application that we have today? Can you even phrase the conflict we face in trying to keep their meaning in todays’ world? I found it too difficult to do with any ease and would welcome your thoughts. Post your reply on the conversation page at the thought cloud above this post.
(2) quotation from 307 US versus Miller 1939 https://supreme.justia.com/cases/federal/us/307/174/case.html