To celebrate the end of a successful spring semester at PNC I present the term paper from my Revolutionary War class, a subject I am extremely passionate about.
Militias and the Second Amendment
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 United States Constitution, twenty seven words whose meaning is argued on a daily basis. The opening clause routinely generates the most fervent discussion. It is interesting to examine just what a militia was in the 18th century and why the founders linked the people’s right to possess and use deadly implements to that institution’s reason for existence.
The prime impetus of the American Revolution was Massachusetts Governor General Thomas Gage’s proclamation of June 19, 1775 that required to colonists surrender their arms and ammunition. True, the conflict had been brewing for decades with the colonials harboring a plethora of grievances, but Gage’s march on Lexington and Concord to confiscate a cache of this vital property was the last straw. Citizen soldiers quickly assembled, literally coming out the woods and fields to harass the British. These were the opening actions of the Revolution and relied wholly on New England militia with Massachusetts providing the lion’s share of the troops.1
As these skirmishes predated the Continental Army’s creation by several months, arms carried by the militiamen did not come from central colonial stores as they did not exist. At the time, the fledgling Continental Congress possessed neither the financial resources nor had an effective overall military control structure in place.2
Militias, however, were well-established in the colonies. In the case of Massachusetts, every man capable of bearing arms and so enrolled was required to furnish his own musket, ammunition and other accouterments as part of his duty per a law dating to 1645. The obligation also entailed drilling twice per year.3 This colonial era enactment doubtless approved by the governor, came during the period characterized by salutary neglect, that is, the colonies conducted business largely free of interference from London. The primary function of the militia during this period was to repel Indian attacks. Harassing and embarrassing the parent nation’s armed forces was probably the last thing on the minds of the governor, parliament or the king when they offered their tacit approval.
Lexington and Concord also saw men who fell outside the parameters of militia service due to advanced age but nevertheless put their privately owned arms to good effect. Historian Clayton E Cramer in Armed America relates the story of one such man. “Samuel Whittemore, age eighty years upon seeing British soldiers marching towards Concorde, prepared by oiling his musket and pistols and sharpening his sword.” Cramer continues the narrative:
Whittemore had posted himself behind a stone wall, down Mystic Street about four hundred and fifty feet . . . . The distance seemed an easy range for him, and he opened fire, killing the soldier he aimed at. They must have discovered his hiding place from the smoke-puff, and hastened to close in on him. With one pistol he killed the second Briton, and with his other fatally wounded a third one. In the meantime, the ever vigilant flank guard were attracted to the contest, and a ball from one of their muskets struck his head and rendered him unconscious. They rushed to the spot, and clubbed him with their muskets and pierced him with their bayonets until they felt sure he was dead . . . . Whittemore lived eighteen more years, dying in 1793 at the age of ninety-eight.4
Aside from being a tough individual and patriot, not to mention an excellent shot, Mr. Whittemore’s contribution to the revolution serves to illustrate the risks a government gone tyrannical faces from an armed population. This in a nutshell is why the British, much the same as any other authoritarian regime throughout history has desired disarmed subjects.
The Battle of Bunker Hill, actually fought on Breed’s Hill was another early action, one that solidified the idea that the Americans might have a chance against the mightiest empire in the world. News that “[a] force of farmers and townsmen fresh from their fields and shops, with hardly a semblance of orthodox military organization, had met and fought on equal terms with a professional British Army” was not lost on London.5
At the same time the Continental Congress recognized that if a military challenge were to succeed, much work would be necessary on the organizational and equipment levels. Something more specialized than what the British derisively referred to the militia as “rabble in arms” would be required.6 Still, the paramilitary’s contribution to the cause of independence was far from over. As for creation of the professional force deemed an exigent, it would cause a great deal of debate since it smacked of the hated standing army.
The militia, even considering the above noted successes, is often given a short shrift by modern politicians seeking to minimize their contributions to the Revolution. Much of the rhetoric is designed to support a particular agenda by confusing a population whose knowledge of firearms is limited to what they see courtesy of Hollywood. Many of these individuals who have never so much as touched a real gun are also indoctrinated with an irrational fear of them.
Modern obfuscations notwithstanding, there were real problems in the areas of fitness for duty and duration of commitment as far as the18th century militia was concerned. Often these deficiencies stemmed from lack of leadership, along with the very nature of a part-time volunteer force that had to deal with practical issues such as running a family farm or business. These realities were of no consequence to professionals paid to fight; it was their occupation. The militias for their part were noted to fight fiercely when called to defend home territory, then as quickly as they appeared, melt back into the woods. Conversely, at times, they often fled after only a token resistance was put forth.
Brigadier General Daniel Morgan, a rough-hewed frontiersman himself, was one commander who recognized the unique strengths of the militia. At the same time, he knew intuitively how to turn their perceived weaknesses into a tactical asset. The Battle of Cowpens fought on January 17, 1781 stands testimony to his masterful melding of the two. There, in contrast to General Horatio Gate’s blunder at Camden, South Carolina of placing his militia opposite of Lord Charles Cornwallis’ crack troops, Morgan purposely employed his militia at the front line, albeit to achieve a different objective. There, they fired two volleys as ordered and fell to the rear. British commander Banastre Tarleton took the bait and believed another business-as-usual rout was about to take place. To his shock, he then faced Continental Regulars who were waiting just out of view. On this occasion, however, the militia did not simply break and run. Instead, they followed orders and hid behind a hill, just to the rear. From this protected position they put their accurate rifles to deadly effect picking off the dazed and confused British forces.7
The militia that helped carry the day at Cowpens bore a unique name: Georgia and North Carolina Riflemen. They were so-called because of their arms: the rifled musket, the most accurate, longest range weapon of the day. While somewhat slower to load than the common smooth-bore, in skilled hands this deficiency was more than made up for by deadly accuracy. The rifles for all intents and purposes were equal to, or in many cases, superior to what the regulars of both armies were issued. And while such advanced arms were certainly useful in the procurement of game, the term “sporting purposes” was not in the American lexicon. Lead and powder were expensive and precious. As a rule, shots were not fired except with a specific purpose, whether defense of oneself, neighbors, or to procure food. Firearms were tools, nothing more, nothing less. These were universally understood 18th century concepts.
While possessing up-to-date personal firearms, what the militiamen at Bunker Hill, and Cowpens lacked most in the way of equipment was bayonets.8 This deficiency was not in response to any law prohibiting these militarily useful accessories. To the contrary, day-to-day application of firearms simply did not involve European style bayonet charges. This lack of cold steel however, was a major problem when facing formations of British regulars. Conversely, it was of little consequence when executing the hit and run guerrilla tactics American irregulars favored.
The bayonet, largely superfluous on faster-to-load modern arms played an important role in the foundation of America. It is interesting that well-intentioned, though misguided attempts at weapons regulation such as President Bill Clinton’s Assault Weapons Ban of 1994 targeted what are now viewed as cosmetic features such as pistol grips and bayonet lugs. One has to wonder how our forefathers might view such developments. Would they detect a hint of tyranny in such initiatives?
The Revolutionary War went on for eight bloody years. In the end it was the sacrifice of an inferior, but tenacious indigenous force that carried the day, wearing down not only the British military, but general public as well. True, the financial contributions of France and Spain in what became a world war certainly helped turn the tide; without the French naval presence in particular there would be no America. But the French also supplied desperately needed muskets and ammunition. It is one thing to control the seas, something the British were undisputed masters at, but at the same time, a ground presence is necessary to claim true dominance over a particular piece of real estate. In this the Continental Army and supporting militia proved this maxim true time and again.
When the time came to construct a government not seen in the annals of human history, another protracted battle was waged. In this one though, words replaced bullets. Once the basic constitution was devised, there was still the matter of securing the states blessing through ratification. The key to obtaining this support hinged on the inclusion of a bill of rights to protect the people. These same people had just lived through a revolution and had strongly held views as to what should be contained in the document. It is little wonder that the opening text of this paper, The Second Amendment, was at the forefront of their thinking.
At this early stage of the republic a standing army was repugnant to many Americans, nevertheless, it was recognized that if the United States was to succeed as a nation, and perhaps become a world power, a way to organize the well-armed population was vital. At the same time the resulting force would provide an important check and balance and allay fears of a professional army that was seen as increasingly necessary.
James Madison, champion of a strong central government nevertheless recognized the inherent danger it posed. Historian Clayton E. Cramer notes: “In ‘Federalist 46’ James Madison pointed to the enormous numerical advantage that ‘a militia amounting to near a half million citizens with arms in their hands’ would have over any imaginable standing army.” 9As Madison fought to see his creation of a new style government survive, he extolled the virtues of an armed citizenry as a check on the tyranny such a powerful entity might fall into. It should be remembered that during the Revolution the Continental Army rarely exceeded 10,000 men, so his hypothetical citizen force would have proved formidable.
This theme of an armed citizenry being a bulwark of liberty can be seen in legislation created shortly after ratification of the Constitution and Bill of Rights. Recognizing the contributions of citizen soldiers, while at the same time seeking to address some of the shortcomings created by relying on a volunteer force, Congress ratified The United States’ Militia Act of 1792 on May 2 of the same year. This law spelled out the terms of a well regulated militia and authorized the president to call the militias into Federal service “. . . whenever the United States shall be invaded, or be in imminent danger of invasion from and foreign nation or Indian tribe.” It further provided for a command structure and laid out rules for discipline, pay while called up, and term of service.10
The Second Militia Act of 1792, approved on May 8, delved into great detail as to the composition of the militia: “That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years and under the age of forty-five years . . . shall be severally and respectively enrolled in the militia . . .” Of particular interest is what these registered members were to procure to fulfill their obligation: “That every citizen so enrolled and notified, shall within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, shot-pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball . . . .” Additionally, officers were required to provide for themselves a sword and attending accouterments. Giving a nod to greater uniformity, hence regulated, “. . . after five years from the passing of this act, all muskets for arming the militia, as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound.”11
It should be noted that every piece of equipment mandated by the Act was standard kit of an 18th century soldier. The objective was to have a force ready to respond to imminent threats, but without the attending risks to liberty a professional army entailed. To the founders, the militia was meant to be a fully militarized force, albeit one where the participants were responsible for providing their own personal weapons and gear.
As the United States grew into a world power during the nineteenth century, the reliance on a part-time citizen-based military was supplanted by full-time professional forces. The militia concept though, was still viewed favorably at the dawn of the twentieth century, enough so that The Militia Act of 1903 was ratified. Sec.1 of this law affirms the manning requirements contained in the eighteenth century rendition, with the notable exclusion of the words “free able-bodied white male.” For the purposes of our discussion, however, it is the distinction made in militia categories which: . . . shall be divided into two classes-the organized militia, to be known as the National Guard of the State, Territory, or District of Columbia, . . . and the remainder to be known as the Reserve Militia.” The law goes into great detail as to how the National Guard was to be organized and equipped, with the firearms to be provided by the Federal government. The law also explicitly declares who controls the same: “That said rifles and carbines and other property shall be receipted for and shall remain the property of the United States . . . .”12
One might wonder how James Madison’s check on tyranny “. . . a militia amounting to near a half million citizens with arms in their hands’ would have over any imaginable standing army,” would be of much effect sans firearms. As the 1903 Act is silent as to how the second component, the Reserve Militia is to be armed, one could conclude that, the right of the people to keep and bear arms shall not be infringed has it covered.
Much of the aforementioned discussions were rendered moot in 2008 when the Supreme Court issued its historical Heller decision.13 In this ruling the court held that Americans have a fundamental right to own guns. There were, of course, caveats excluding criminals, the insane and other prohibited persons, but interestingly, no militia test. The concept of an armed citizenry was expanded in 2010 with the McDonald decision.14 This ruling incorporated the Second Amendment to a state and local level through the Fourteenth Amendment. Lest anyone get the impression the dispute over gun rights was settled once and for all, nothing could be further from the truth. As with protecting other civil rights, the battle rages on.
SUPREME COURT OF THE UNITED STATES DISTRICT OF COLUMBIA ET AL. v. HELLER CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 07–290. Argued March 18, 2008—Decided June 26, 2008.
SUPREME COURT OF THE UNITED STATES MCDONALD ET AL. v. CITY OF CHICAGO, ILLINOIS, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 08–1521. Argued March 2, 2010—Decided June 28, 2010.
Militia Act of 1792
SECOND CONGRESS. SEss. I. CH. 28. 1792. CHAP. XXVIII.-An Act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections and repel invasions. STATUTE I. May 2, 1792.
Second Militia Act of 1792
SECOND CONGRESS. SEss. I. CH. 33. 1792. CHAP. XXXIlI.-An Act more effectually to provide for the National Defence by establishing an Unifurm Militia throughout the United States.(a) STATUTE I. May 8, 1792.
Militia Act of 1903
FIFTY-SEVENTH CONGRESS. SEss. II. 1903. An Act to promote the efficiency of the militia, and for other purposes. Approved January 21, 1903.
Coakley, Robert W. and Conn, Stetson eds., The War of the American Revolution Washington, DC: Center of Military History, U.S. Army, 1975.
Cramer, Clayton E. Armed America: The Story of How and Why Guns Became as American As Apple Pie, Nashville: Nelson Current, 2006.
Hallbrook, Stephen P. The Founders’ Second Amendment: Origins of the Right to Bear Arms, Chicago: Ivan R. Dee, 2008.
- Robert W. Coakley and Stetson Conn, eds., The War of the American Revolution Washington, DC: Center of Military History, U.S. Army, 1975,
- , 5.
- Stephen P. Hallbrook, The Founders’ Second Amendment: Origins of the Right to Bear Arms, Chicago: Ivan R. Dee, 2008, 11.
- Clayton E. Cramer, Armed America: The Story of How and Why Guns Became as American As Apple Pie, Nashville: Nelson Current, 2006, 99.
- Robert W. Coakley and Stetson Conn, eds., The War of the American Revolution,
- , 6.
- , 22-23.
- , 6.
- Cramer, Armed America, 6.
- SECOND CONGRESS. SEss. I. CH. 28. 1792. CHAP. -An Act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections and repel invasions. STATUTE I. May2, 1792.
- SECOND CONGRESS. SEss. I. CH. 33. 1792. XXXIlI.-An Act more effectually to provide for the National Defence by establishing an Unifurm Militia throughout the United States.(a) STATUTE I. May 8, 1792.
- FIFTY-SEVENTH CONGRESS. SEss. II. 2003. An Act to promote the efficiency of the militia, and for other purposes. Approved January 21, 1903.
- Supreme Court of the United States, District of Columbia, Et. Al. v .Heller, 2008.
- Supreme Court of the United States, McDonald, Et. Al. v .Chicago, 2010.