The Surprising Truth About Militias and the Second Amendment

When the founding fathers spoke of “militias,” they were not referring to a bunch of yahoos running around in the woods with paint on their faces outside of state control.

They were referring to a citizen army under state control.

So is “militia” just the old-time word for what our army is today?

No.

A standing or “regular” army is one made up of professional, full-time soldiers like the US Army, the Marines, the Navy, and the Air Force. And it’s permanent, meaning you don’t disband the army when the fighting is done.

A militia back in those days was something completely different.

The problem of a standing army

The founding fathers knew they needed to provide for the common defense, but they saw standing armies controlled by a central government as an immediate threat to the liberty the new union sought to preserve.

Why would they think that?

Easy. History was littered with case after case where standing armies had become a law unto themselves and oppressed the populace. One glaring example is what happened to the Roman empire. It suffered centuries where this faction and then that faction of the army was in control, and it brought nothing but a continual procession of civil wars and bloodshed.

History also showed that even if the military didn’t take over, kings and queens were happy to wield standing armies to impose their will and oppress the people. Remember: the world then was ruled by monarchies. The founders had never seen a standing army wielded by any other type of power.

So the founders didn’t want to give a president or any other central authority that power. They feared doing so would only pave the way to the ruin of the new nation they sought to form.

So if you don’t have a standing army, how do you defend your country?

The fyrd

The founding fathers thought they saw a solution in a tradition of duty that went back hundreds of years in England. In the days when the Saxons ruled England, the kings and dukes would muster and deploy the fyrd to help them fight their wars.

The fyrd was made up of all able-bodied free males between certain ages, regardless of their vocation. It was their duty to provide their own arms and defend the land when called by their leaders. So this was an army made up of farmers, tanners, smiths, tailors, etc.

But the fyrd wasn’t a standing army. Nor was it populated with full-time soldiers. This citizen army was to be called out when needed, and when the crisis was over, it was disbanded, and the men went back to their vocations.

The militia scheme

The founders took this idea and tweaked it. Back in the Saxon days, the king controlled the fyrd. In this new scheme, the United States would rely on a fyrd (which they called a militia), but the powers to control it would be split between the president, Congress, and the States.

First, Congress, not the president, was the only authority that could declare war and summon the state militias. So the president would be the commander in chief when the militia was active. But the minute Congress decided to end a war and disband the militia, that army dissolved, leaving the president as commander in chief of only the tiny number of troops that had been authorized as the regular army (less than 1,000 at the time).

Second, while the Federal government would provide the weapons the militia would use when it mustered them for war, the state governments would be the ones to appoint the officers and train the soldiers. You can’t run an army without officers. So this would prevent the Federal government from taking control by stacking the army leadership with those loyal to a despot president or Congress.

So the militia was supposed to be the main force that fought our wars, and it was supposed to be temporary. It’s true that Congress did authorize a standing army, but it was tiny. And with this setup, the founders figured we’d have the army we’d need, but we’d avoid the problems standing armies had posed in the past.

So militias, as thought of by the founders in the 1700s, were not groups outside the government’s control. They were temporary citizen armies. And power over them was broken up between the president, Congress, and the States so no one group or person could wield them tyrannically.

1791 and The Bill of Rights

Accordingly, the founders wrote the articles and sections of the Constitution in 1787 to set all of this up. However, many anti-federalists were concerned that the Constitution didn’t go far enough to protect the rights of individuals and limit the power of the Federal government. In fact, many of the founders were so concerned about the issue that they refused to ratify the Constitution as it was.

The only way they’d sign on is with the promise of the Bill of Rights. When they knew that bill was forthcoming, delegates from nine of the original thirteen states ratified the Constitution. The delegates of two other states waited until the document was produced. The final two (North Carolina and Rhode Island) waited until 1791 when the Bill of Rights, which includes the second amendment, was passed.

So let’s look at the language of the Second Amendment in light of what we know about the fear the founders had of standing armies.

“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.”

Why did they include this? It was not because they wanted the citizens to be able to hunt or protect themselves with guns. They figured that was a given. They included this amendment because they concluded that an armed citizenry would make it impossible for tyranny to arise.

Noah Webster, a Federalist, stated the idea this way when trying to persuade Pennsylvania to ratify the Constitution:

“Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive”

So the second amendment was included in the Bill of Rights because enough of the founders feared that the Constitution could be read in a way that would allow the Federal government to disarm the populace. Disarming the populace would open the way to a standing army under Federal control. And that would open the way to tyranny.

When all was said and done, the founders separated the power of the military in this way:

• Only Congress could declare war and muster the militia
• Only Congress could finance it
• There would be no standing army to speak of
• Only the states could appoint officers to the militia
• The government was forbidden to infringe on the rights of individuals to keep and bear arms

So what happened?

Militias didn’t work

The problem is the militia didn’t work well enough to actually provide for the common defense.

It didn’t work during the Revolutionary War. The republic had to create the Continental Army. That army was supported by the militias, but the colonists found they couldn’t rely on the militias alone. They had to have the regular army to fight the British.

After the war, the Continental Army was disbanded, but the militias simply weren’t good enough to face the threats the new nation faced, and George Washington himself openly lamented it. The troops took a licking in 1791 at the battle of St. Claire’s and then time and again during the War of 1812.

Heck, militias didn’t even work in the days of the fyrd. In those days, the Saxon and Norman kings relied on their house warriors (their standing army) and mercenaries for most of the work. They only supplemented with the fyrd.

1792

After the defeat in 1791, the early leaders concluded they needed a regular army with the training and skill it possessed. So in 1792 Congress authorized the creation of the First Legion of the United States, a standing army of 5,190 men. The legion was renamed “The United States Army” in 1796.

In 1792 Congress also passed the Militia Acts. The acts were written to expire in two years. But Congress wrote another in 1795 to replace them. These laws authorized the president to called out the militia “whenever the United States shall be invaded, or be in imminent danger of invasion” and “whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act.”

So a mere five years after the Constitution was first ratified, and a year after the Bill of Rights, Congress dramatically increased the size of the nation’s standing army and gave the President the authority to call out the militia! It’s clear that right from the beginning the militia scheme started showing some cracks.

Today

The First Legion was small. But it grew again in 1808, and then again during the war of 1812. And it continued to grow slowly, then ballooned in the 1900s until we now have more than a million troops in the armed forces of the US.

The National Guard is what the militias of the 1800s transformed into in the early 1900s, but, wouldn’t you know it, the National Guard is now mostly under the control of the Federal government too.

What does this mean?

It means we now have the most powerful standing army the world has ever known and almost no militia. It means our military is a complete 180 of what the founders envisioned.

I’m not saying it’s bad. I love our military.

I’m merely pointing out that militias back then meant a certain thing and the founders wanted them for a certain reason. And that we have completely replaced that arrangement with the exact opposite.

As for tyranny, we still have armed citizens. Maybe this is enough to deter tyranny as Webster claimed. Although the disparity between what the citizens can arm themselves with now and what the regular army has is nothing like it was in the 1700s. So maybe there are other laws and aspects of our culture that have prevented it. Maybe it’s both.

Either way, it’s important to understand what the original militias were, why the founders wanted them, and what the second amendment was all about.

More

Helpful articles

• The fyrd
• A History of Militias in the United States
• Militias in the United States
• The Regular US Army
• The US National Guard
• The Continental Army
• Noah Webster
• 1791: The Second Amendment (note particularly the passage on the ratification debates)
• 1791: St. Clair’s defeat
• 1792: The Militia Acts
• 1792: The Legion of the United States
• Size of US military by branch from 1789 to 1997
• A history of gun laws in the United States (pay particular attention to the 1939 and 2008 cases)

US Constitution – Provisions for the military

Here are all of the parts of the original seven articles of the Constitution that deal with the military.

Article 1 – The Congress

Section 8

This section gives Congress seventeen powers. Six of these have to with the common defense. Those military powers granted are:

• To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
• To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
• To provide and maintain a Navy;
• To make Rules for the Government and Regulation of the land and naval Forces;
• To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; [notice there are only three cases that warrant the calling forth of the militia]
• To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Section 10

This section prevents the States from doing thirteen things. Three of these have to do with the military.

“No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

Article 2 – The President

Section 2

“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;”

Article 4 – The States

Section 4

“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion;”