The Second Amendment and Standing Armies
- The Founding Fathers were not a monolithic block. As a result it's easy for people, including me, to pick and choose from their statements to defend a particular viewpoint.
- In the United States, it is the Supreme Court which determines the Constitutionality of a law. The Roberts Court has determined the 2nd Amendment Guarantees an individual right to own a firearm.
- There is a history of Supreme Court decisions that many have regarded as "wrong". Many of the same people, for example, who support the Supreme Court decision on individual gun rights disagree with its decision on the Affordable Care Act, Corporations having a right to speech, Same Sex Marriage, Roe v. Wade, etc. Similarly the Supreme Court in its history has endorsed slavery in Dred Scott v. Sandford and racial segregation with Plessy v. Ferguson.
- Opponents of "wrong" decisions have on occasion been able to get such decisions overturned and one can witness such a desire in the potential nominees for the 2016 Presidential Election.
With that out of the way, I'm going to offer one of the reasons the Second Amendment was so important and it strongly focuses on the militia clause of the Amendment. Let us review the text of 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.
It is worth noting there exist more than one version of this Amendment with slightly different punctuation and capitalization of words.
Going back to the late 18th century, it becomes important to note there were a number of things the people of the new Republic were very nervous about. For example, consider the Third Amendment, of which I believe there are no organizations dedicated to preserving:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
One of the grievances of the American Colonies against the British Empire was that the British maintained a right to quarter soldiers in the homes of the Colonists without their consent. This is not something that has ever been a major issue in the United States but it was important enough to the early Americans to include in the first ten Amendments.
With that in mind, it is worth considering the fear of standing armies that the early Americans had. While George Washington was leader of the Continental Army, the governors were the leaders of the state militias. PBS' Liberty discussed the differences between the two:
The militia continued to exist and fight throughout the revolution with mixed results. Continental Army officers tended to deride its effectiveness, probably with reason, at least in the early years of the war. But at Saratoga, in the South, and in New Jersey during a 1780 campaign, they were essential fighting forces. By the end of the war, Washington and others in the Continental command were using the militia as support for the regular army, and they were a crucial component in the ultimate victory.
Though the Continental Army was essential to American Victory, many in the 18th century considered a permanent standing army a threat to liberty. With that in mind, among the powers vested to Congress in Article 1 Section 8 of the US Constitution was the power to raise an army, but an army could only be funded at most for two years at a time, preventing the permanent financing of a standing army:
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years
The Heritage Foundation discussed how in the 18th century standing armies were considered a threat to liberty and how that clause was designed to balance the threat to liberty a standing army posed with the need to protect the fledgling republic:
For most Americans after the Revolution, a standing army was one of the most dangerous threats to liberty. In thinking about the potential dangers of a standing army, the Founding generation had before them the precedents of Rome and England. In the first case, Julius Caesar marched his provincial army into Rome, overthrowing the power of the Senate, destroying the republic, and laying the foundation of empire. In the second, Cromwell used the army to abolish Parliament and to rule as dictator. In addition, in the period leading up to the Revolution, the British Crown had forced the American colonists to quarter and otherwise support its troops, which the colonists saw as nothing more than an army of occupation. Under British practice, the king was not only the commander in chief; it was he who raised the armed forces. The Framers were determined not to lodge the power of raising an army with the executive.
Many of the men who met in Philadelphia to draft the Constitution, however, had the experience of serving with the Continental Line, the army that ultimately bested the British for our independence. Founders like George Washington, James Madison, and Alexander Hamilton were also acutely aware of the dangers external enemies posed to the new republic. The British and Spanish were not only on the frontiers of the new nation. In many cases they were within the frontiers, allying with the Indians and attempting to induce frontier settlements to split off from the country. The recent Shays's Rebellion in Massachusetts had also impelled the Framers to consider the possibility of local rebellion.
The "raise and support Armies" clause was the Framers' solution to the dilemma. The Constitutional Convention accepted the need for a standing army but sought to maintain control by the appropriations power of Congress, which the Founders viewed as the branch of government closest to the people.
... [B]oth Federalists and Anti-Federalists alike expressed concerns about a standing army, as opposed to a navy or the militia. Accordingly, this is the only clause related to military affairs that includes a time limit on appropriations. The appropriations power of Congress is a very powerful tool, and one that the Framers saw as particularly necessary in the case of a standing army. Indeed, some individuals argued that army appropriations should be made on a yearly basis. During the Constitutional Convention, Elbridge Gerry raised precisely this point. Roger Sherman replied that the appropriations were permitted, not required, for two years. The problem, he said, was that in a time of emergency, Congress might not be in session when an annual army appropriation was needed.
What does this have to do with the Second Amendment? During the debate about the Second Amendment, text under consideration stated:
A well regulated militia, composed of the body of the people, being the best security of a free state; the right of the people to keep and bear arms shall not be infringed, but no person, religiously scrupulous, shall be compelled to bear arms.
Representative Elbridge Gerry of Massachusetts (of whom we get the term Gerrmandering - thanks for that) was uncertain as to if the religious clause was necessary and engaged in a discussion as to the purpose of the Amendment. Also from the Constitution Society, we see him saying in the minutes of the debate:
- Constitution Society, Documents on the First Congress Debate on Arms and Militia
Mr. Gerry — This declaration of rights, I take it, is intended to secure the people against the mal-administration of the government; if we could suppose that in all cases the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms. What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now it must be evident, that under this provision, together with their other powers, congress could take such measures with respect to a militia, as make a standing army necessary. Whenever government mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actually done by Great Britain at the commencement of the late revolution. They used every means in their power to prevent the establishement of an effective militia to the eastward. The assembly of Massachusetts, seeing the rapid progress that administration were making, to divest them of their inherent privileges, endeavored to counteract them by the organization of the militia, but they were always defeated by the influence of the crown. [Emphasis mine]
To be frank, there is considerable debate at this time as to what constituted a militia in the eyes of the Founders, with some saying it referred to all the citizens and others indicating it referred to specific bodies. Above, Representative Gerry references the attempts of the Massachusetts Assembly to raise an effective militia, something Great Britain actively sought to prevent. What I take from this is he was referring to a power of a state, namely Massachusetts, in opposition to a central government - in his example, Great Britain. Essentially, what I take this debate to be about is not the right of a citizen to own a gun in order to hunt, protect his land, etc. but rather the right of a state to have an armed militia as a check against the federal government.
One can see how much more important the state militias were compared to the standing army. At the start of the War of 1812, according to GlobalSecurity.org:
[T]he U.S. Army consisted of only 6744 men and officers. The militia of the states was called into federal service and 489,173 militiamen responded. The most famous militia commander during the War of 1812 was Major General Andrew Jackson, whose backwoods sharpshooters defeated British regulars at the Battle of New Orleans in 1815.Clearly this assemblage of militias called up people who were members of specific organizations, not a general assemblage of citizens. The militias were organized with their own leadership structure, such as the aforementioned General Jackson.
Does this mean that there is no possible interpretation of the Second Amendment to give an individual right to bear arms? No, as the Supreme Court has in other cases, perhaps most famously in Roe v. Wade, delineated inferred rights from the Constitution. However, I do believe it to be a stretch that foremost on the authors' minds was the right of an individual - it seems to me the primary motivation was protecting the rights of the states against the potential tyranny of standing armies from the federal government.
Image credit - public domain painting of Elbridge Gerry by James Bogle (1861)