A Well Regulated Militia

Note: This post is part of our League Symposium on Guns In America. You can read the introductory post for the Symposium here. To see a list of all posts in the Symposium so far, click here.

by M.A.

Much is occasionally made about the second amendment as some sort of fail-safe; some sort of methodology by which the Founding Fathers, in enshrining the Ten Commandments of the “Bill of Rights” etched in stone by the hand of G-d and never to be altered or debated again, created a Big Red Button named the Second Amendment which was always destined to end in a violent overthrow of the US government at some point.

It’s pure fertilizer-grade bull manure, but it gets a lot of play in the gun owner circles and especially gets play amongst sorts of people who probably shouldn’t have guns to begin with: Oath Keepers, Weekend Warrior “militiamen”, “Survivalists” who are convinced that the End Times Are Upon Us, Sovereign Citizen Movementers, and dead-enders who believe that there is some sort of anarchy or calamity coming.

Those who do not know history are doomed to repeat it… and we don’t teach the lessons of history anymore. Nobody pays attention to this stuff.

So here’s some historical perspective:

In 1755, the French and Indian Wars were ongoing; all 13 of the colonies had standing militias to be called upon in order to repel trouble, be it putting down insurrections of their own people or repelling attacks by hostile indian tribes. George Washington’s assessment of these weekend-warrior types was true to form after seeing how “well” they operated:

The militia system was suited for only to times of peace. It provided for calling out men to repel invasion; but the powers granted for effecting it were so limited, as to be almost inoperative. – George Washington, 1755

Nothing much changed until the American Revolution. The revolutionaries fought their mightiest battles with… professionally hired mercenary troops and those British soldiers like Washington who had defected to the revolutionary cause. The myth of brave American settlers winning a war by sniping at the British from the woods? Just that, a complete myth. The militia that were called up from the cities were more like this…

The militia are turning out with great alacrity both in Maryland and Pennsylvania. They are distressed for want of arms. Many have none, we shall rake and scrape enough to do Howe’s business, by favor of the Heaven. – John Adams, 1777

As it turned out, even during the war, the militia could not be relied on. Defections and abandonment were commonplace, and the practice of “bounty jumping” – men deserting one militia, then signing up for another one under an assumed name to get another signing bonus – was highly common. Washington was plagued by problems too numerous to mention as leader of the Continental Army and found himself boondoggled and at cross purposes with the militias of the individual 13 colonies almost all the time.

By the Confederation period, the military leaders of the USA had had about all they could take of the militia system.

To place any dependence on the Militia, is, assuredly, resting upon a broken staff. Men just dragged from the tender Scenes of domestic life; unaccustomed to the din of Arms; totally unacquainted with every kind of military skill, which being followed by a want of confidence in themselves, when opposed to Troops regularly trained, disciplined, and appointed, superior in knowledge and superior in Arms, makes them timid, and ready to fly from their own shadows…if I was called upon to declare upon Oath, whether the Militia have been most serviceable or hurtful upon the whole, I should subscribe to the latter. – George Washington, Sept. 24, 1776

Despite this, the colonies muddled along without a standing army, relying on calling up the militia, and then when the convention was called, and the Constitution written, again no standing army was created. Instead, the 2nd amendment was created in the spirit of maintaining 13 distinct colonial militias, which could be recruited and converted into a federal army only in times of war. It went so far that Congress in 1792 created laws to govern who would be forcibly registered into the militias and what weaponry they would be required to purchase and maintain:

I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. 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, 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 to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

This too didn’t last. By the start of the war of 1812, many of the militias were refusing orders to fight outside of their own state borders when called upon by the Federal Government. The process of calling up the militia, the poor quality of militia troops, the misbehavior of same, the lack of training of same, the downright irresponsibility of same, and the rates of abandonment of duty were incredible burdens, as was the risk of militias themselves becoming rogue groups as had happened in Shay’s Rebellion. In 1814, a British sortie burned the White House to the ground while wholly ineffective, useless militia troops could do nothing. The poor performance of the militia experiment convinced even die-hard skeptics of a standing army such as James Madison that the USA needed to do away with its militia system and craft a standing army even for times of peace.

James Madison, who in 1787 had said “A standing military force, with an overgrown Executive will not long be safe companions to liberty“, instead became the President of the United States whose signature ends the bill creating America’s professional standing army as one of the final acts of his administration in 1816.

I bring this up to point out: THIS is the context of the “well regulated militia” and “right to bear arms” the founders were referring to. They expected, every time military action was needed, to call up the townsfolk to war. They expected to manage, through legislation and requirement, to have each of these people maintain a weapon and compatible ammunition, such that in prolonged engagements the government could provide nothing but food, gunpowder and compatible ammunition bought in bulk.

They never expected the “right to bear arms” would create the situation of lunatics gunning down other citizens.
They never expected the “right to bear arms” would create weekend-wacko militias, unbeholden to either state or federal authority, who were even less well trained than their own militias turned out to be.
They never expected the “right to bear arms” would result in incredibly deadly weaponry being used by paramilitary-organized street gangs to wage private wars in American cities.
For that matter, they never expected that travel would be so fast that a gun owner, licensed in Texas, could the next day be in California or New York under a completely different set of gun laws and with a concealed-carry permit not recognized by those states.

In comments elsewise during this symposium, there are people calling me to task for daring to suggest that a part of the “Bill of Rights”, treated as if it were some holy godly writ to be bowed down and worshipped, the “Eed Pleb Neesta” of our times, should be repealed or altered. I stand by my words. The second amendment as written is not what those who would misrepresent it claim it to be, and the language allowing it to be misrepresented that way is a cancer, an enflamed appendix upon the body of the citizenry, desperate for treatment.

The second amendment was about ensuring that we could call up a citizen militia in times of war, not shoot each other on the streets. It was not intended to provide a “self-defense” right-to-carry and makes no mention of one: per the 9th and 10th Amendments, that was left to the states each for their own laws and to the legal system with the guarantee of an adversarial right to face one’s accuser in front of a jury of one’s peers.

My position is: It’s time to rewrite the second amendment, or jettison it entirely. I prefer the former, to provide for constitutional authority to create appropriate, nationally-uniform gun regulations in which the legal right to own guns and use them responsibly can be preserved. But I’ll be damned if I let the liars of the NRA turn around, twist the second amendment, and claim that a piece of law written in order to ensure the availability of men and arms at times of war is instead a right for every deranged lunatic to own and haul around on their back a weapon capable of taking down more people in under one minute than a militia brigade likely could in ten.