Chicago-Kent Law Review
Symposium on the Second Amendment
vol. 76, 2000: 403
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
THE SECOND AMENDMENT IN CONTEXT: THE CASE OF THE VANISHING PREDICATE
H. Richard Uviller* & William G. Merkel**
INTRODUCTION: THE SOCIAL AND JUDICIAL FOUNDATIONS
OF THE DISPUTE .......................................................................................... 406I. ARMS, THE MAN, AND THE MILITIA:
THE HISTORY OF A CONCEPT .................................................................. 432A. The Militia and the Militia Ideal in the Historiography of the
American Revolution ............................................................................. 4321. Civic Humanism ..................................................................... 440
2. The English Civil War and the Classical Republicans ........... 442
3. The Glorious Revolution and the English
Bill of Rights of 1689 ................................................................. 4484. The Opposition Tradition and Its American Reception ...........456
5. Rethinking the Provincial Militia during the
Great War for Empire ................................................................. 4596. A Constitutional Crisis and a Standing Army: The Republican
Nightmare Becomes Reality ........................................................ 4617. The Continental Army and the Militia during the
American Revolution ...................................................................467B. Madisonian Structuralism: The Place of the Militia in the New
American Science of Government ......................................................... 4701. The Confederation Government Tries -- and Fails -- to
Organize the Militia .................................................................... 4702. The Military, the Militia, and the Philadelphia Convention .... 473
3. Militia and Military Powers in the Constitution of 1787 ......... 477
4. The Antifederalist Critique of the Federal Military Power and
the Crusade for a Bill of Rights .................................................... 4805. The Second Amendment: The Last Act of Classical
Republican Constitutionalism? ..................................................... 495II. FROM MILITIA TO NATIONAL GUARD ................................................ 511
A. The Decay of the Old Militia, 1789-1840 ........................................... 512
1. Federalism and the Militia: Attempts at National Revival under
Federalists and Jeffersonians ........................................................ 5122. The Last Years of the Militia-of-the-Whole:
Popular Discontent and Government Inertia ................................ 522B. The Era of Volunteers, 1840-1903 ...................................................... 528
1. The Rise of the Volunteer Guards ............................................ 528
2. A Nation of Volunteers: The Grand Army of the Republic ..... 530
3. Revitalization and Professionalism .......................................... 532
C. The United States Army and the United States Army National
Guard in the Twentieth Century ............................................................. 5341. Birth of the Modern National Guard ....................................... 534
2. Continued Evolution of the Guard and Reserves during the
Age of Statism ............................................................................. 536III. THE MEANING OF MEANING ............................................................... 548
A. Text and Context ................................................................................ 548
1. Linguistic Context ................................................................... 549
2. Social Context .......................................................................... 551
B. The Metamorphosis of the Concept of a Militia ................................ 552
C. Generic Fidelity ................................................................................. 554
D. The Second Amendment Today ......................................................... 554
E. Other Interpretations Considered ..................................................... 561
1. Carl Bogus: And Armed Militia Being Necessary to the
Security of a Slave State .............................................................. 5612. Sanford Levinson: Citizen Guerillas Being Necessary to the
Security of a Free State ................................................................. 5793. William Van Alstyne: The People Having a Right to Arms, the
Security of a Well-Regulated Militia and a Free State Are
Assured ......................................................................................... 590CONCLUSION ................................................................................................. 598
That a well-organized militia is essential to the security of a free state is one of those fine sayings that, like the mild axiomatic truths which adorn Root's system of penmanship, are often copied, but never acted upon. We resolved it at town meetings; we proclaimed it in flaming editorials; it did yeoman-service in many a closely-contested election, on one side or [on the] other, or . . . on both; orators waxed eloquent upon it . . . ; it was the favorite toast at many a banquet . . . ; Congress rang with it; the Executive endorsed it; it was lugged into the learned opinions of the Judiciary: but nothing came of it.
¾The United States Service Magazine, September 1864
INTRODUCTION: THE SOCIAL AND JUDICIAL FOUNDATIONS OF THE DISPUTE
Owning and carrying personal firearms¾or at least the unbridled right to do so¾has become a freighted metaphor of American individualism. With obvious linkage to the muscular nineteenth-century frontier hero of myth and experience,[1] the powerful image of pride can be traced to Renaissance Florence by way of English pamphlets popular in Revolutionary America.[2] Mostly masculist, today's phantom of the armed pioneer limns the true American patriot as loyal to great quasi-religious principles thought to be the founders' creed. Emboldened by his proclaimed stance of sturdy independent autonomy, this present-day [Page 407] hero is scornful of the accretions of social enlightenment of the last 200 years and animated by a hearty distrust of government, which is seen as having betrayed the grand design of the sainted founders in favor of a debilitating social ethic. The hero has reinvented personal responsibility and takes upon himself the basic obligation of defense of self, land, and family against vaguely defined intruders of any stripe¾including the forces of government itself.
Despite its thick romantic patina and a disturbing xenophobic strain,[3] the picture is not altogether repugnant to patriotic American values. We do, as a nation, extol the values of individual! responsibility. The lessons of the colonial and western frontiers have been etched on our national character.[4] Indeed, an argument might be made that we have maintained democracy as successfully as we have because of the egalitarian ideals and skeptical attitudes towards authority that derive in part from the early national experience. While our idea of the frontier has been colored by generations of Hollywood scriptwriters, the legend remains a vital component of contemporary notions of civic courage and individual virtue. And, to the extent that the gun figures in our image of the responsible, liberty-loving family protector who stands at the center of our cherished self-image today, it cannot be lightly dismissed. Symbols count.
With the resurgence of the militant individualist, interest has been rekindled in the constitutional precept most closely associated with the credo: the Second Amendment.[5] Roused from its peaceful slumber with its dormant companion, the Third Amendment,[6] the proclaimed right of the individual to keep and bear arms has been stitched like an icon into the center of the banner around which our contemporary [Page 408] frontiersmen rally. Largely ignoring the introductory clause: "A well regulated Militia, being necessary to the security of a free State," the individual rights brigade emphasizes the ringing language of the main clause: "the right of the people to keep and bear Arms, shall not be infringed." These people see in the provision, engraved in parchment, a recognition of the basic liberty of each individual citizen, in his or her private capacity, to possess lethal weapons without government interference. It is, they claim, an entitlement written into the text of the fundamental civic charter to add a stroke to the definition of the freedom of the individual citizen every bit as important as the security against unreasonable searches and seizures or the right not to be forced to cooperate in one's own prosecution.[7]
Needless to say, there is another interpretation. Sometimes carelessly labeled¾sometimes carelessly articulated ¾the opposing group takes the position that the Amendment was adopted to assure the states' control over their local militias only.[8] Embraced by gun control [Page 409] advocates among others, this contingent refuses to acknowledge any purpose or effect in the provision to assure individuals the absolute right to keep guns. They argue that the newly liberated colonists, still mistrustful of central government and its standing armies, wrote the Second Amendment into the Bill of Rights out of concern over the powers granted to the new federal government in Article I, Section 8; powers expressly allowing Congress to "call[] forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions" as well as to "organize, arm[], and disciplin[e]" them. It was not enough that Clause 16 of Section 8 expressly reserves to the states the "Appointment of the Officers" and the "Authority of training the Militia according to the discipline prescribed by Congress." Fearing federal control¾even use of state militias against rebellious citizens of the states¾Antifederalists insisted on the Second Amendment (so this contingent insists) to make sure Congress would not take away the essential power of the local troops by depriving them of their weapons. This take on the Second Amendment is often labeled the "collectivist" approach by adherents and detractors alike.
In this raging hermeneutic controversy, the Supreme Court has been, if not silent, strangely Delphic. Apart from an occasional comment by a particular justice,[9] the Court has spoken only four times [Page 410] on the subject of the Second Amendment.[10] The decisions, Cruikshank (1876), Presser (1886), Miller v. Texas (1894), and United States v. Miller (1939), are old, flawed in some respects, and, in the most critical instance (United States v. Miller), somewhat ambiguous. Yet as scholars on both sides of the erratic trajectory must acknowledge, lower courts, excepting a single maverick federal district court in Texas,[11] have read [Page 411] the opinions consistently down to the present day.[12] The two Supreme Court cases exercising the most influence on lower courts have been the first and last in the series, United States v. Cruikshank and United States v. Miller. In essence, Cruikshank teaches that the Second Amendment is not binding on the states, and United States v. Miller teaches that the Second Amendment does not invalidate all federal laws prohibiting weapons.
Cruikshank¾notwithstanding two problems discussed below[13]¾continues to make sense to today's courts; it would be odd, to say the least, to read the Second Amendment as prohibiting states from undermining their own freedom and security. Regarding the Second Amendment, the Cruikshank Court wrote:
The right . . . of "bearing arms for a lawful purpose" . . . . is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed; but this, as has been seen, means no more than it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National Government ... .[14]
This aspect of Cruikshank was restated in Miller v. Texas,[15] the third of the Supreme Court's four Second Amendment cases. However, both Cruikshank and Miller v. Texas came down well before the wave [Page 412] of incorporation decisions by which the Supreme Court applied most of the rights enumerated in the Bill of Rights against the states.[16] In fact, Miller v. Texas, like Cruikshank, is archetypally pre-incorporationist in tone and style, relying on, inter alia, Baron v. Baltimore,[17] and the Slaughter-House Cases.[18] One might, therefore, be inclined to ask whether Cruikshank's nineteenth-century holding that the Second Amendment does not bind the states survives the incorporation of most of the Bill of Rights over the course of the twentieth century. But since the Supreme Court early rejected "total" in favor of "selective" incorporation,[19] and since no subsequent court has applied the Second Amendment against the states, Cruikshank¾dated as its jurisprudence may seem¾has not been overturned by implication through the general triumph of incorporation. Indeed, modern cases state forthrightly that Cruikshank's Second Amendment holding is still law of the land.[20]
The Second Amendment's right to keep and bear arms thus remains one of the few rights enumerated in the first eight amendments not to have been incorporated in the Fourteenth Amendment, and thus made binding upon the states.[21] In part, this reflects the Second [Page 413] Amendment's concern with federalism. Unlike the First,[22] Fourth,[23] Fifth,[24] Sixth,[25] Eighth,[26] and possibly even the Seventh[27] Amendment guarantees of personal liberties, the Second Amendment is aimed directly at preserving the balance of powers between federal and state governments.[28] As such, it lacks a private liberty component that could be applied as a limit to state action against individuals identical to the limit on federal action originally enshrined by the framers.[29]
Legally irrelevant, but morally more vexing than Cruikshank's pre-incorporation vintage, is the fact that the case worked a shameful perversion of justice which should rightly place it alongside Dred Scott in the annals of judicial infamy. Cruikshank affirmed a federal circuit court order arresting judgment upon a jury verdict convicting six of several thousand members of the "White League" (a.k.a. the Ku Klux Klan) for banding together in disguise to obstruct black citizens from voting and to take retribution against blacks for appearing at the polls and for carrying arms to protect themselves. The undertakings of the "White League" that led to the prosecution of Cruikshank climaxed in the Colfax Massacre in which several hundred blacks were murdered by [Page 414] the Klan, which was then in the process of "redeeming" Louisiana from Reconstruction rule. Cruikshank had been the only successful federal prosecution in the wake of the atrocities, and arresting judgment in the case thus assured that the massacre went unpunished.[30]
The Supreme Court's decision rested in part on a narrow reading of the Equal Protection Clause of the Fourteenth Amendment that has since been wholly superseded.[31] Of perhaps partially redeeming value, Cruikshank¾while steeped in the formalism characteristic of the age of pedantic pleading¾is still cited for the nobler proposition that due process requires an indictment to set forth with particularity and factual specificity each element of an offense with which a defendant is charged.[32] But to a less formalistic eye, this aspect of Cruikshank reflects less a concern for the rights of the accused than it does a [Page 415] reactionary Court's desire to circumvent the congressional intent behind the Reconstruction Amendments and the Civil Rights Act of 1866.[33]
If Cruikshank¾its dubious provenance notwithstanding¾remains readily understandable purely as Second Amendment precedent, United States v. Miller is more problematic from the standpoint of Second Amendment doctrine. The single critical sentence in that decision[34] is read by the individual right advocates as saying that the weapon in question, a sawed-off shotgun, could be proscribed only because it was not the sort of gun likely to be among the ordnance of a militia.[35] This reading suggests that other sorts of weapons¾handguns, automatic rifles, assault guns, even rocket launchers and machine guns - are immune from government regulation. The opposing position reads the Court's language as confirming the inescapable connection between the right to have arms and the purposes of a collective militia, saying in effect that the proclamation of the major clause is dependent on its service to the minor. The unfortunate ambiguity in United States v. Miller's holding is, to some extent, relieved by the Court's recognition in the same opinion that the "obvious purpose" of the Second Amendment is "to assure the continuation and render possible the effectiveness of [state militias] . . . . [The Amendment] must be interpreted and applied with that end in view."[36]
Between Cruikshank and United States v. Miller, the Supreme Court handed down two other Second Amendment opinions, the first of which one writer has called the most important decision in the field.[37] In [Page 416] 1886, in Presser v Illinois,[38] the Supreme Court considered constitutional challenges to the Military Code of Illinois. The case arose from a criminal charge brought under a portion of the Code prohibiting men from "associating themselves together [in any] military company" other than the regularly constituted state militia, or from drilling or parading without permission of the governor.[39] In upholding Hermann Presser's conviction for leading an armed parade of his Lehr und Wehr Verein[40] through the streets of Chicago without leave from the governor, the Court made clear that the Second Amendment does not sanctify wholly private militia operating without state license or authority.[41]
The Presser decision is the best reasoned of the Supreme Court's Second Amendment cases. But unfortunately for purposes of the present controversy, Presser addresses Second Amendment considerations only tangentially. The Presser opinion is devoted chiefly to rejecting well thought (if misplaced) preemption and supremacy arguments by appellant's co-counsel, Lyman Trumbull. The former Senate judiciary chairman and moderate Republican leader during Reconstruction[42] maintained that the entire Military Code of Illinois, consisting largely of the Illinois Militia Act of 1879, was unconstitutional. According to Trumbull, the Illinois code allowed an organized state militia of no more than 8,000 men, but the federal Militia Act of 1792, by which Congress occupied the field in respect to militia organization, actually required the states to maintain general or common militias, consisting of the entire nonexempted, military-aged male population.[43] Because the state act was incompatible with federal law, Trumbull insisted, it must give way in the face of the Supremacy Clause.[44] The Supreme Court, however, invoked the doctrine of severability, and held that the only provisions of the code relevant to Presser's indictment¾namely those barring armed parades by unlicensed bodies without gubernatorial permission¾were clearly constitutional, and therefore declined to pass on the constitutionality of [Page 417] the rest of the state militia code.[45]
In so far as the Second Amendment was concerned, the Presser Court reaffirmed Cruikshank, stating that the Amendment restrained only congressional action.[46] It also rejected a related Fourteenth Amendment claim on the grounds that any right to serve in the state militia was a creature of state law, and not a privilege or immunity of national citizenship.[47] Interestingly, the Court conceded in dicta that because "all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states," the states cannot prohibit the people from keeping and bearing arms "so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government."[48] However, this prohibition on state-ordered disarmament of the federal militia reserve existed apart from the Second and Fourteenth Amendments.[49] Instead, it reflected what the Court called the "prerogative of the general government, as well as its general powers" respecting the "reserve militia of the United States."[50] The Court thus invoked a concept of federal supremacy derived from the "calling forth" and "provid[ing] for"[51] powers under the Constitution to imply a prohibition against state interference with arms bearing in the federal militia. This federal right of the people to [Page 418] keep and bear arms, like the state right to keep and bear arms guaranteed by the Second Amendment, had no application outside the context of militia service. To the Supreme Court,[52] as well as to Lyman Trumbull,[53] the right(s) to arms protected the states and the nation against over-large standing armies by enabling a militia, but served no private purposes.
The other Supreme Court case touching the Second Amendment is the first Miller case, Miller v. Texas,[54] in which the Court dismissed a Second Amendment claim for want of jurisdiction and lack of a federal question. Beyond refusing to apply the Second and Fourth Amendments against state courts ("it is well settled that the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts"),[55] Justice Brown's 1894 opinion says nothing at all about the scope of the Second Amendment protection of the right to bear arms.
In addition to these four familiar cases, the Supreme Court has recently addressed the subject of constitutional restraints on gun control legislation in a celebrated Commerce Clause case, and in so doing cast light indirectly on the possible approach of the current justices to a [Page 419] Second Amendment challenge. In United States v. Lopez,[56] decided in 1995, the Court struck down the Gun Free School Zones Act of 1990¾which outlawed carrying guns in the vicinity of schools¾for failure to articulate any tenable relationship between gun possession in school zones and the regulation of interstate commerce. The decision has been hailed by scholars as the opening salvo in the Court's postmodern campaign to revitalize the federal structure of American government by considering critically the too-ready¾and heretofore unchallenged¾invocation by Congress of its powers to regulate interstate commerce. As far as Lopez's possible Second Amendment implications are concerned, the clearest guidance as to any justice's reading of the right to arms emerges not from the majority, but from a brief dissent by Justice Stevens. In his words:
Guns are both articles of commerce and articles that can be used to restrain commerce. Their possession is the consequence, either directly or indirectly, of commercial activity. In my opinion, Congress' power to regulate commerce in firearms includes the power to prohibit possession of guns at any location because of their potential harmful use . . . . [57]
Thus, Justice Stevens clearly assumes that gun possession lacks any constitutional protection that might render prohibition under the commerce power void or even suspect. If not quite as apparent, the majority opinion in Lopez appears to have similar implications regarding the lack of constitutional protection for a private right to own guns. The majority not only ignored suggestions by amici curiae, Academics for the Second Amendment et al., that the Gun Free School Zone Act be struck down as violative of the Second Amendment, but, perhaps more significantly, took for granted throughout its opinion that Congress could regulate or prohibit gun possession to the extent that it had a rational basis for so acting pursuant to its power to regulate commerce.
The issues joined in the above Supreme Court cases, if not well known to more doctrinaire polemicists, have been thoroughly expounded in the growing academic literature on the subject. It is not our intention to provide yet another critical review of the positions and arguments by those who have preceded us into the fray. Rather, we mean to submit an interpretation of the Second Amendment less often heard and, we feel, more persuasively supported by textual analysis and historical material than the polar positions that divide the protagonists. [Page 420]
In brief, the hypothesis we shall advance is this: The Second Amendment cannot be read as a simple guarantee to the states that they will be able to maintain armed troops subject to their command despite what Article I, Section 8 might appear to say to the contrary. Such a reservation of ungranted power, if such there were, would more likely be found in the Tenth Amendment.[58] From the text as well as a fair understanding of the contemporary ethic regarding arms and liberty, it seems to us overwhelmingly evident that the principal purpose of the Amendment was to secure a personal, individual entitlement to the possession of arms. We cannot, however, (as the individual right contingent generally does)[59] disregard entirely the first part of the text proclaiming "[a] well regulated Militia, being necessary to the security of a free State." The question becomes, then, how does the introductory phrase affect the scope of the individual right to arms secured in the language of the second clause of the Amendment.
Here, as a matter of textual analysis, we regard it as highly significant that of the several great entitlements enunciated in the first eight amendments, no other is hedged by a conditional or explanative clause. The founders could have said, introducing the First, for example, that "free communication being essential to the intelligent exercise of the franchise, Congress shall make no law, etc." If they had, the gloss might have had a different sheen; laws restricting artistic expression, commercial speech, or other communication unrelated to voting might have been tolerated. But they did not. They could have written in the Fifth that "torture being inimical to the dignity of man, and likely to induce false confessions, no one shall be compelled to be a witness against himself."[60] But they did not. So too, introductory clauses might have altered the impact of the single provision of the Fourth Amendment or the several of the Sixth. The unconditional rights announced in the First, Fourth, Fifth, and Sixth Amendments [Page 421] might then have been construed considerably less generously.
In the light of this unique introductory language, we understand the Second Amendment as though it read: "Inasmuch as and so long as a well regulated Militia shall be necessary to the security of a free state and so long as privately held arms shall be essential to the maintenance thereof, the right of the people to keep and bear arms shall not be infringed." This is not an arbitrary choice among available readings. As we shall show in Part III, the grammatical structure of the Amendment precludes reading the provision as severable, independent clauses, one of which might stand though the other falls. In our paraphrase we part company from the most devoted of the individual right advocates. The uncompromisable point of difference is that, to us, the language of the Amendment cannot support a right to personal weaponry independent of the social value of a regulated organization of armed citizens - notwithstanding comments in other contexts by some of the founders regarding guns and the ideal of personal responsibility.
To be sure, more than a few utterances by leading figures of the Revolutionary and constitutional period do endorse shooting and gun possession as tokens of firm and independent character. Perhaps the most cited instance thereof is the following homily by Thomas Jefferson in which he advises his fifteen-year-old nephew concerning the value of sport shooting as a character-building exercise:
A strong body makes the mind strong. As to species of exercises, I advise the gun. While this gives a moderate exercise to the body, it gives boldness, enterprize, and independance to the mind. Games played with the ball and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks.[61]
Jefferson's dictum reveals as much about the eighteenth-century English-speaking aristocracy's distaste for rowdy and plebeian soccer[62] as it does about his constitutionalism. Yet Jefferson was in fact one of the few political leaders of the Revolutionary generation [Page 422] to go beyond endorsing gun ownership as a sporting attribute of manly and genteel character, and discuss weapons possession outside the context of militia service as a property worthy of constitutional protection.[63] In the third version of his 1776 draft constitution for Virginia¾which, incidentally, the commonwealth declined to adopt¾Jefferson proposed that no "free man be debarred the use of arms [within his own lands or tenements]."[64] This proposition, radical as it was, perhaps represented a retreat from an earlier draft of the proposed fundamental law for Virginia, which would have guaranteed an unqualified right that "freemen shall [never] be debarred the use of arms,"[65] presumably on public, common, and unclaimed lands as well as their own. Neither version became law in the Old Dominion, a fate shared by a number of other radical provisions of Jefferson's draft constitutions, including a clause guaranteeing fifty-acre land grants to every person not otherwise entitled to vote,[66] thereby elevating the general populace into the propertied electorate, rather than debasing electoral qualifications to the meanest level of the commonest man.
Jefferson's early radicalism respecting constitutional entitlements to gun possession went the way of his land redistribution and emancipation schemes.[67] By the time of the Chesterfieldian letter to his [Page 423] nephew, Jefferson's praise of firearms was no longer articulated on constitutional grounds. A few years later, writing Madison from Paris with advice on the desirability of the proposed federal Bill of Rights, Jefferson spoke exclusively of protecting a right against standing armies, and made no mention of arms or weapons at all.[68]
Indeed, save for Jefferson's failed 1776 proposals and Samuel Adams's rejected draft amendment of 1787,[69] we know of no comments by leading figures of the Revolutionary generation concerning the value of private arms possession made in the context of drafting or interpreting the Constitution, the Second Amendment, militia legislation, or related state constitutional provisions. Exhortations lauding the virtues of shooting, including Jefferson's to his nephew, were inevitably made in an extra-legislative situation and without any legislative reference.[70] In contrast, for Jefferson's peers on the political [Page 424] stage, arms-related discourse in a legislative context focused on securing or organizing the militia rather than protecting a private right to own guns for recreational or other personal purposes. The most telling collateral utterance relating to the language of the Second Amendment is doubtless the Militia Act of 1792. Passed by Congress only one year after the Amendment's ratification, the Militia Act aimed to flesh out the right to arms described in the Amendment. It provided:
That every citizen so enrolled [in the militia] 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.[71]
This statute, the light it sheds on the Second Amendment, and its importance to the evolution of the militia are analyzed in detail below in Part II.A.1. But for now, it is sufficient to compare the language in the statute to that in Jefferson's avuncular maxim. The statute reflects the military reference of the framers' obligation-focused "rights talk" in the Second Amendment, while Jefferson's aphorisms on the sporting, manly, and salubrious nature of shooting, not only lack a military reference, but pivotally remain wholly apolitical, extra-legal, and unconcerned with rights.[72] [Page 425]
At least as early as 1840, courts acknowledged that the terms "keep and bear Arms" had military connotations inconsistent with assertions of personal rights to carry whatever weapons pleased the individual.[73] Moreover, this recognition reflected long established usage, not linguistic innovation.[74] In our analysis, then, the individual right to keep and bear arms secured in the Second Amendment is a right without application outside the context of service in state or federal militia. As our focus shifts forward from the time of the Republic's founding, we will demonstrate that the critical context surrounding the personal right to bear arms set down in 1789 has experienced dramatic, substantial, and material changes; changes which began even in the early years of nationhood, accelerated over the course of the nineteenth century, and reached the very foundations of the right in the twentieth century.
In the early years of the Republic, compulsory, universal militia service gave way to the volunteer principle, as the militia-of-the-whole fell into proverbial disfavor, disrepute, and desuetude.[75] Even more fundamentally, from 1808 onward, Congress provided an annual appropriation of $ 200,000 with which the states could purchase militia arms,[76] thereby taking the first steps down a long road leading to the national government's complete assumption, during the early twentieth [Page 426] century, of the arming of the militia, which the Militia Act of 1792 had rested with the individual, able-bodied man.[77] Even as early as the Civil War, when the nation first confronted the need for mass mobilization under the Constitution, all state enrollees and volunteer companies were sworn into federal service.[78] And after considerable initial confusion regarding the bounds of state and federal authority, all arms used by the 2,666,999 soldiers who served in the Union armies[79] were procured and issued by the federal government.[80]
In 1903, following the great disorder which accompanied mobilization of state guard units during the Spanish War and Philippine insurrection, Congress finally acted under pressure from President Roosevelt to subdivide the militia-of-the-whole¾by then entirely fictitious¾into an active militia (the National Guard) and unorganized militia (the nonenrolled male population between eighteen and forty-five years of age). At the same time, the federal government standardized state units and equipment and, in return for massive increases in federal funding, the states accepted vastly enhanced federal supervision of militia training.[81]
Congress acted again in 1908 to make the National Guard the country's first-line reserve, providing that the organized militia would be called forth before the raising of federal volunteers.[82] More fundamentally, Congress waived existing territorial limitations on National Guard call ups, thereby attempting to bypass the issue of the constitutionality of militia service outside the United States which had plagued the president and the War Department in the wars of 1812-15, 1846-48, and 1898-1901. Within a few years, however, both the attorney general and the judge advocate general of the army had written reports finding this use of the militia to be unconstitutional,[83] presenting Congress anew with the problem of legally deploying [Page 427] American reservists overseas.[84]
This controversy came to a head during the preparedness movement that preceded American entry into World War I. The bitterly contested National Defense Act of 1916[85] "federalized" the organized militia, which was thenceforth known only as the National Guard, and integrated it into the command structure of the War Department and the regular army. Upon Congressional authorization, the president was empowered to draft guardsmen into federal service for the duration of the emergency specified by Congress. In the years before World War I, then, the state militias were being integrated into a federally supervised United States Army National Guard supplied with standardized, congressionally prescribed arms purchased with federal funds and kept in state arsenals, which too were increasingly financed by the national government. During the same period, the states acknowledged delegation of the provision of security against invasion to the U.S. Army and the organized reserves, laying the framework of federal relations that allowed the massive mobilization of citizens into soldiers in both world wars.[86]
The next step on the road to federal integration was taken during the Hundred Days of 1933.[87] Congress made the National Guard part of the army during peacetime as well as war, justified its administration for the first time not under the Militia Clause but under the Army Clause of the Constitution, and "eliminated the word "Militia' from the War Department organization by changing the name of the supervisory agency to National Guard Bureau."[88] Crucially, the states now accepted the dual enlistment system whereby guard members took simultaneous oaths to serve in their state units and in the regular army when called up to national duty.[89] Presidential authorization to draft individual guard [Page 428] members into federal service, which had facilitated mobilization in World War I but had dissolved the traditional state units, now gave way to a delegated power to order guard units into federal service whenever Congress declared a national emergency and authorized troop use in excess of the regular forces. Finally, in 1952, Congress did away with the requirement of the declaration of an emergency and gave the president essentially discretionary power to call up National Guard units with gubernatorial consent.[90]
In the years since World War II, however, the roll of a mass reserve in assuring national security has seriously diminished, in part because the technical complexity of equipment and tasks required of the modern army have dictated a heightened emphasis on professionalism, and in part because nuclear arsenals have made massed war drawing all the personnel reserve of the country increasingly unlikely. The need for a whole nation in arms has¾in all likelihood, permanently¾disappeared. At the same time, conscription has become so unpopular as to border on being politically unfeasible. In this climate, the volunteer principle has again supplanted the draft as the recruiting mechanism for fighting the limited wars of the nuclear age, leaving no shadow of the old militia's universality or compulsory service obligation about today's National Guard.[91]
These historical processes, treated in detail in Part II, have fundamentally changed the militia and the context in which it operates. Taken together, we will argue, historical developments have altered a vital condition for the articulated right to keep and bear arms. While not exactly obsolete, the Second Amendment has become, like the Third, dormant: of no significance or effect on Congress's gun regulation power unless or until the conditions of the enactment are revived, state militias[92] are restored, and militia members are required to arm themselves. It might illustrate our position regarding the present posture of the Second Amendment to imagine a provision of the 1789 Bill of Rights reading as follows: Commerce within and between the several States being essential to the economy of the Nation, the right of the people to breed and keep horses shall not be infringed. Should government, at some level that is bound by the provision, enact today a [Page 429] restriction on the number of horses that might be stabled within a designated area, no constitutional challenge would be heard, we will claim, because the right created by the provision had gone into suspension when equine commerce was taken over by the internal combustion engine.
We are proposing that the first clause of the Second Amendment - which cannot be ignored¾must be read as a condition for the principal clause. And it is significant that¾even if rhetoric concerning the virtue of economic self-sufficiency and citizen defense had permeated late-eighteenth-century thinking on this side of the Atlantic¾the condition imposed by the text is not: "Self-reliance and the virtue of arms being necessary to the maintenance of personal security, the right of the people to keep and bear arms shall not be infringed." Such a condition, it might well be maintained, would never change and would keep the enunciated right as alive today as it was when enacted. To those who would have it so, we express our regrets but, as they have often said to their gun control opponents, wishing will not make it so. If one side is stuck with one clause, the other is as fully bound to take account of the other.[93]
It should be unnecessary to emphasize that our position says nothing whatsoever about the legality or wisdom of possessing arms, the types of weapons people may own, or regulation of the manner and purposes of carrying them. We say only that such entitlement or prohibitions as there may be must emanate from a source other than the Second Amendment to the Constitution of the United States. And it is, in our view, entirely fitting that the democratic branch¾free of constitutional constraints - should from time to time enact, amend, repeal, and reenact, locally or federally, such rules regarding private access to weapons of various sorts as may seem wise.[94] [Page 430]
Perhaps the most difficult component of our argument will be neither the linguistic nor the historical, but the theoretical: How do changing times affect the meaning of ancient texts? Here, eschewing the modern, pragmatic Posner,[95] we come closer to Justice Scalia's view that the original intention of the framers, inferred from text according to a hypothetical contemporary understanding, should govern as long as and insofar as critical, assumed, underlying social and technological factors remain fundamentally unchanged.[96] Since most such things evolve in some respects, what constitutes an unchanged critical factor is obviously a matter of judgment. But it does seem clear that a provision relating to horses enacted in an era of exclusively horse-powered land transportation loses its force when the mode of commerce is utterly altered. To this general theory of construction, we would add that an express recognition in the governing text of the dependence of a right on a particular social condition makes our interpretative model considerably easier to apply.
This, then, is our plan of argument. Following this introductory summary, this Article treats the ideological roots of the Second Amendment in Part I. Much of what we set forth there is familiar ground to scholars of the eighteenth century. In the light of the high-decibel controversy surrounding the modern import of the [Page 431] constitutional provision, it may come as a mild surprise to lawyers not overly steeped in early-American political theory to find much general accord regarding seventeenth-and eighteenth-century antecedents and the function of arms and the militia in the design of the new American political experiment. We describe the understanding of the founding generation as derived from the political thought that impressed itself on the minds of those concerned with the nature of just and enduring government. Here we draw upon not only the influential sources in America of the late eighteenth century, but also explore the collateral expressions of the founders and their contemporaries to find the most likely purposes and assumptions underlying the text. This will constitute the web of historical context from which the meaning of the text may be read. Then, in Part II we will describe the evolution of the military unit called militia to its present (non)status in the social fabric of contemporary America.
Thereafter, in Part III, we turn to the Second Amendment's meaning today, seen, as we think it must be, in the light of its history and its context¾a context very different from that which existed when the Amendment was written. We will stress that because the operative language of the Second Amendment is predicated on the existence of a specified social and military condition,[97] fidelity to the Amendment requires that the rights it guarantees be assessed in the light of today's militia's constitutional posture, its status under state and federal law, the manner in which it is armed, and its role in the preservation of the states' and the Union's military and civil security. The inquiry will focus on how far these rights contemplated in reference to the militia as it existed in theory and practice in 1791¾when individual members were responsible for arming themselves¾survive after that militia has vanished in fact (and very nearly in name as well). In our Conclusion, then, the Second Amendment reemerges in its original meaning, protecting rights fundamental to the vitality of the militia, the constitutionally preferred system of national defense. But as the Second Amendment resurfaces with the meaning with which it was invested over two hundred years ago, it also enters into a modern America in which that original meaning, at least for the time being, no longer has any scope for application or operation. Finally, we will undertake to respond to three eminent scholars who have expounded theses at variance with our own. [Page 432]
I. ARMS, THE MAN, AND THE MILITIA: THE HISTORY OF A CONCEPT
A. The Militia and the Militia Ideal in the Historiography of the American Revolution
Many have been baffled by the language of the single sentence that is the Second Amendment. Just what should we make of the odd¾indeed unique¾preamble, the language that precedes (but otherwise seems to bear no connection to) the ringing declaration of the right to keep and bear arms? Some have emphasized that since the militia was, at the time, the whole people (free, white, adult, male people anyway), the words "Militia" in the first clause and "people" in the second clause are synonymous, and the right of arms is extended only to the militia as such.[98] Others, as vehemently, would regard the preamble as nothing but introduction, of no more substantive significance than an indrawn breath before the delivery of the message.[99] And the message, like others in the First, Fourth, Fifth, and Sixth Amendments, is unequivocal: now and forever, in military pursuits and all others, guns [Page 433] are an individual entitlement immune from government curtailment.[100]
Fair consideration of the ample historical record, however, discloses that to the framers, the ratifiers, and indeed to the polity of new-fledged Americans generally, the language of the provision could hardly have been a more felicitous expression of its scope, intent, and purpose. There seems to us little doubt that the provision protected as an individual right (and in more democratically generous form)[101] the ancient custom of free, adult citizens to keep and to carry arms,[102] but [Page 434] only in the context and for the advancement of the organized, communal military units generally believed to be indispensable to the preservation of political liberty.[103] During the ratification debate, some radical Antifederalists did call for a wider, purely private right to own weapons, but, at least outside of New Hampshire, theirs remained marginal voices.[104] On the other hand, innumerable contemporary utterances, cutting a wide swath across the political spectrum and spanning the full breadth of the nation, support our militia-focused reading. For the moment, we choose but one such expression from the Virginia Ratifying Convention. Virginia's recommended constitutional amendments, drafted principally by George Mason and appended to its vote of ratification, include language that is virtually identical to the Second Amendment, but more illuminating:
Seventeenth, That the people have the right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.[105]
Like the framers of the Second Amendment two years later, Virginians at the ratifying convention imbedded the right to keep and bear arms in a web of related military principles. As Robert E. Shalhope writes, "more often than not [Americans of the Revolutionary generation] considered these rights inseparable."[106] Bearing implied making muster, equipped and ready for service; keeping entailed steady [Page 435] readiness to serve when called upon.[107] For the founding generation and for near contemporaries, then, the right to bear arms, far more than others enshrined in the Bill of Rights, brooked, tolerated, invited, and even demanded regulation because of its communal and military context.[108]
As the Virginia Ratifying Convention's conjunction makes plain, the right of arms was not therefore an individual right in the same sense as the rights expressed in the Fourth, Fifth, Sixth, and even the First Amendments to the United States Constitution. These are rights the exercise of which protected personal integrity, often at the expense of common interests. They reflect distinctly postclassical ideals, rooted in the principles of the common law, but accorded a basis in larger political theory only by the individual rights philosophers of the eighteenth century who forged the first modern conceptions of liberal democracy. They owe as much to the Enlightenment as to the Renaissance. In contrast, the personal right expressed in the neoclassical language of the Second Amendment was understood by principal draftsman James Madison to serve the interests of the commonweal by buttressing community security and reducing the sway of a dangerous, potentially usurpatory standing army.[109]
The extent that we are today bound by the understanding of our foreparents, how far the running sands erode or reshape the governing intent of ancient text is, of course, an endless and perhaps fruitless debate.[110] But we think the significance of dramatically altered context two centuries later is especially loud and clear in the case of the Second Amendment, because the framers explicitly stated their social and [Page 436] ideological premise in the same breath as the right they enunciated.[111] Hence, in this Part, we will develop the historical argument that the right expressed was individual, and that it was deemed vital enough to be enumerated among the fundamentals because, in the republican framework of this particular provision, it was deemed a communal bulwark.
To pursue this inquiry into purpose and meaning, we must return to the frame of mind of the late eighteenth century.[112] As the Pulitzer and Bancroft Prize winner Gordon Wood, among others, has argued, the prevailing political climate in this epoch among Americans of all classes and conditions was vigorously intellectual and historicist.[113] The American Revolution was, like the framing and adoption of the Constitution, a revolution of ideas.[114] To Wood, the Revolution involved taking honored old ideas seriously, while the Constitution fashioned new ideas to serve old purposes.[115] In this philosophical climate, "Militia" and "bear[ing] arms" were pedigreed terms of art, deeply steeped in meaning that was then as intuitively clear as it is now opaque. Both were central constructs in a system of thought with which the constitutional generation was intimately familiar, and with which many of its representatives were virtually obsessed.[116] This was the [Page 437] intellectual universe of civic humanism or classical republicanism,[117] the political culture that formed the starting point for constitutional debate in late-eighteenth-century America.[118]
Until the late 1950s, most American historians assumed that the constitutional universe of the founding period could be reduced to a recapitulation of Locke's Second Treatise on Government. An outpouring of brilliant scholarship during the next two decades amply demonstrated that the constitutionalism of the founders and framers had in fact had a rather different predicate, that Locke was not a fundamental figure in their political hagiography, and that Americans of the constitutional period were far closer to the radical, civic, and communitarian impulses of the English Commonwealth and the Restoration-era opposition than to what twentieth-century writers have wrongly styled "Lockean" individualism.[119] These insights became the [Page 438] central tenets of a new republican paradigm, which in great measure determined the course of writing about early American history from the late 1960s into the early 1980s.[120]
Not only did leaders of the Revolutionary era dwell on the radical thought of the Interregnum English Commonwealth and the Restoration opposition, the Americans also applied this republican ideology to the constitutional questions of their own time¾including the issues of the relationship of liberty to arms possession and the role of the military in civil society. In the words of Lance Banning:
No man's thought is altogether free. Men are born into an intellectual universe where some ideas are native and others are difficult to conceive. Sometimes this intellectual universe is so well structured and has so strong a hold that it can virtually determine not only the ways in which a society will express its hopes and discontents but also the central problems with which it will be concerned. In 1789 Americans lived in such a world. The heritage of classical republicanism and English opposition thought, shaped and hardened in the furnace of a great Revolution, left few men free.[121]
The republican ideology that went so far in defining the political world of Revolutionary America rested on a short set of assumptions about the nature of people and the state. Like their Commonwealth-Whig forbears during and after the English Civil War, Americans of the Revolutionary period assumed that public virtue was both the source and goal of all legitimate exercise of public authority. Public virtue implied a common purpose, a dedication that transcended individual [Page 439] interest.[122] Its antithesis was corruption, both individual and constitutional.[123] Individual corruption could take the most obvious and literal form of soliciting or working improper, self-serving influence in government, or it could manifest itself in economic dependence that sapped the individual of his or her independent will and ability to make public-minded choices.[124] Constitutional corruption arose from interbranch imbalances or from imbalances in power among social orders, which undid the carefully nourished historical stability of the polity.[125]
One of the vilest engines of constitutional corruption was the standing army and the system of debt, taxation, influence, and executive bureaucracy upon which it depended. Military power in the hands of a professional band of soldiers¾whose loyalty to the government was unleavened by personal commitment to the community, the people, or the concerns of local security - was anathema to the ideals of civic virtue. Expensive, disengaged, brutal, and unthinking (and most likely composed of ne'er-do-wells and foreigners as well), the standing army was corruption of the body politic incarnate.[126] The surest antidote to this sort of corruption was reliance on a militia of independent and virtuous freemen who supplied their own arms for the defense of the Republic.[127] In the words of one seventeenth-century pamphleteer,
[T]he only Ancient and true Strength of the Nation [is] the Legal Militia . . . . The Militia must, and can never be otherwise than for English Liberty, because else it doth destroy itself; but a standing Force can be for nothing but [royal] Prerogative, by whom it hath its idle living and Subsistence.[128]
In this system of thought, then, independent arms and militia were interlocking central concepts. Early in the evolution of republican ideology, during the sixteenth and seventeenth centuries, they were perhaps the central concepts.[129] However, as time wore on and republican ideology was shaped more and more by English and [Page 440] eventually by American experience, the relative importance of various components of republicanism underwent adjustment. While independent arms possession long retained symbolic and rhetorical significance, by 1787 Madison's "American science of politics"[130] focused more on structural safeguards for republican government (and hence on the dangers of a standing army) than on the character of the individual best suited to prop up a republic (and hence on the linkage of gun ownership to virtue). Whether Federalist or Antifederalist, American political theory of the constitutional period no longer relied principally on an ideal of independent arms possession¾even if it descended from ideology that did, and even if it still engendered rhetorical flourishes on the virtues of independent arms similar to those which had informed political thought at an earlier time. This sea change in political principle is developed in detail in Section 2 of this Part. In the intervening subsections, we will examine the evolving role of arms possession in republican political theory, from its origins in the Renaissance up until its last flowering in the antifederalism of the Bill of Rights and the Second Amendment. What ultimately emerges is a Second Amendment expressing a constitutional preference for government independent of standing armies rather than a right to arms existing wholly without public or military context.
1. Civic Humanism
At least part of the ideology of the American Revolution had its origins in the Italian Renaissance. As J.G.A. Pocock developed the argument some twenty-five years ago, Renaissance statesmen¾especially Machiavelli in Florence¾wrestled with renewed conceptions of the interrelations of politics, history, and human nature.[131] In the Middle Ages, political systems¾even history itself¾had seemed relatively stable. The same organic interdependence of prince, clergy, nobles, soldiers, and people characterized all of Christendom, forming an ingrained pattern transferred with slight variations from generation to generation. The Renaissance brought a consciousness of change, of evolution, and the consequent appreciation of the inherent instability of [Page 441] human society.[132]
In the Italian city-states where the Renaissance first and most brightly flourished, rediscovery of the history of republican Athens and Rome brought also a particular sensitivity to the instability of the republic over time. Historically conscious Florentines and Venetians bemoaned the inability of the ancient republican institutions to withstand historical change and decay. In crafting their own republican city-states, Renaissance statesmen sought to create some certainty that their political systems might, unlike their classical predecessors, endure.[133] But Machiavelli more than others understood that the new republics, too, would inevitably decline.[134] To him, republican government depended on republican society, in which individuals acted virtuously for public purposes and not corruptly and selfishly for private ones. The highest public purpose was, of course, defense of the republic itself.[135]
Yet according to Machiavelli's Discourses, defense achieved by granting a powerful king absolute control of a strong standing army was chimerical.[136] Although that power might repel foreign enemies, it surely corrupted the virtue of the citizen. If it buttressed the republic in the short term, it undermined it over the long haul. Propped up by a standing army, government would no longer flow from deliberation and the individual's sense of duty to the commonweal, but from "placemen," office-seekers, and influence peddlers buying and selling favor with the powerful magistracy necessary to administer the vast military establishment. Access to decision-making authority would become purchasable, and decisions would be made to suit private purposes. The military itself would no longer be employed chiefly in necessary defense, but in elaborate foreign campaigning designed to justify expanding its size, influence, and bankroll. The once virtuous and independent-minded republican citizenry would become politically passive and civicly feeble; the republic would go over to absolutism, and the state itself would eventually fall to more vigorous competitors.[137] [Page 442]
In the classical mode then, republican survival was premised largely on a capacity for defense arising apart from a specialized, full-time, state-financed military establishment. Here, at the center of the civic-humanist paradigm, was the arena in which the citizen-soldier could assert his independence and virtue in the service of the republic. The ideal of the citizen-soldier was embodied in the legendary General Cincinnatus, who had been called from the plough to the defense of the Roman republic. To act in the spirit of Cincinnatus in the early Renaissance era required economic independence: one had to have the wherewithal to carry one's own arms in the service of the republic.[138] Hirelings and mercenaries, paid by the state to carry arms they could not furnish independently, served as foils to the classical republican ideal, for they acted not from motives of virtue, but merely at the bidding of the powerful.[139] As developed below, this archetype passed through Commonwealth ideology and English political pamphlets into the mainstream of American Revolutionary thought.[140] Thus, private arms in the public service played an important part in early Americans' conceptions of public duty and, in turn, in their understanding of political stability in a changing world.
2. The English Civil War and the Classical Republicans
Even as sixteenth-century Italian writers celebrated the virtues of classical citizen-soldiers, the nations of Continental Europe were experiencing a "military revolution,"[141] during which the feudal array yielded to the antithesis of an armed citizenry, the professional army.[142] [Page 443] But while Renaissance learning spread from Italy to England during the Tudor period, the military revolution did not.[143] In Elizabethan England, physical separation from Europe, reliance on naval defense against foreign powers, and the conjunction of imported neoclassical ideals with native prejudices against professional soldiers helped engender policies favoring modernization of the historic militia rather than creation of a standing army to guard the Protestant state against Catholic invasion or subversion.[144]
The term "militia" did not enter the English language until 1590.[145] However, an institution analogous to the militia existed as a holdover from the pre-Norman customary duty of male subjects of every social rank to appear in arms whenever the Saxon fyrd was summoned to defend king and country, a species of obligation existing quite apart from the separate Anglo-Norman duty to bear arms in the array. In 1558, the first year of Elizabeth's reign, England's system of military obligation was reorganized, with control of the county forces devolving to local aristocratic potentates henceforth called county lord-lieutenants.[146] This localism was jealously guarded against royal control as long as the militia continued to be a politically relevant institution in England. In 1573, legislation created "trained bands" of selected men to serve as the core of the county militia. A full-time force was assembled to meet the threat of the Spanish Armada in 1588, but it disbanded quickly after the crises, and thereafter the trained bands and county militia served as England's only army apart from a small force of the Queen's Guards.[147]
Elizabeth's successor, James I, ruling in both England and Scotland, took little interest in military affairs for their own sake.[148] But James was greatly concerned with expanding English royal prerogative [Page 444] and expounding theories of absolute monarchical powers,[149] and, in this context, the harmonious relations between the Crown and Parliament so characteristic of England's first golden age came to an end. As tensions between the Crown and Parliament intensified, seventeenth-century British politics were given up to ideological and political struggles, focusing on issues of religion and separation of powers and, after the coronation of Charles I, on crises of military funding, organization, and control.[150]
Quarrels between the king and Parliament over military issues began as altercations about strategy in Europe, but at length joined constitutionally more explosive questions concerning control of the taxing power, the Crown's attempt to rule without Parliament, and the scope of royal power over the religious establishment and dissenting churches.[151] The pacifist James I long succeeded in ignoring parliamentary pressure for direct British intervention to support the Protestant cause in the Thirty Years' War, but by the close of James's reign, the king's favorite Buckingham was interjecting English expeditionary forces into French campaigns with disastrous results.[152] Upon the accession of Charles I in 1625, the new king made clear his eagerness to involve England more directly in the Continental war. But unlike the haphazard naval privateering undertaken with the Crown's blessing through the early stages of the war, raising a large army for action in Europe required that Parliament create new revenue by imposing taxes.[153] Parliamentarians, jurists, scholars, and the educated realm agreed that the king did not enjoy the power of taxation without parliamentary consent. Yet Parliament suspected that voting high taxes to raise an army would leave Charles virtually unchecked in the exercise of those powers and prerogatives he did legitimately wield. If the king secured the revenue his army required, his opponents feared he could dispense with Parliament by dissolving it and not calling a new one. Without Parliament to pass statutes and voice opposition, Charles's [Page 445] critics argued, the door would open to the king's unpopular High Church religious program.[154]
Exasperated by parliamentary intransigence over the right to control taxation and by the tone of Parliament's Petition of Right of 1628, Charles I did indeed decide to circumvent the Legislature, calling no Parliament at all from 1629 to 1640.[155] Charles endeavored to finance his personal rule by imposts and excises, forced loans, billeting soldiers on the public contrary to law, and by imposing an unpopular and unsuccessful levy called the ship money, which attempted to requisition from inland cities and counties a cash equivalent to the ships coastal jurisdictions customarily surrendered for royal service.[156] The final failure of this scheme and the king's desire to raise money to build a navy and intervene on the Continent led to the begrudging convention of the Short and Long Parliaments in 1640. By November 1641, the inability of the king and Parliament to settle the "Constitutional Question" over the power of taxation had unleashed the English Civil War.[157]
Political issues that fueled the English Civil War were not resolved during that conflict or in its immediate aftermath. Images forged and questions raised in the mid-seventeenth century long endured in the minds of English-speaking people, and, almost 150 years later, these familiar civic dilemmas still exercised unrivaled influence on the developing ideology behind the American Revolution, Constitution, and Bill of Rights.[158] At the heart of England's seventeenth-century [Page 446] quest for constitutional settlement were questions concerning the relation of the legislature and the executive to armed individuals, the militia, and standing armies. The same issues crystallized again in the 1780s, across the Atlantic, in the efforts to forge what became the Second Amendment to the United States Constitution. Yet the English Civil War and the Commonwealth left a mixed legacy for the Second Amendment's framers and interpreters.[159]
To begin with, Commonwealth ideology¾the republican principles at the heart of the parliamentary cause¾developed into the background of accepted political values that Americans on all sides of Revolutionary and constitutional politics took for granted.[160] Thus, during the formative period of the American Revolution, Whiggish fidelity to the gospels of the Commonwealth and of Restoration-era opposition amounted to almost the whole of the American ideology. Central to this line of thinking were the tenets of legislative supremacy, limits over executive power, and suspicion of standing armies.[161] During the "critical period"[162] before ratification of the Constitution, the "ancient" English rights and liberties characterizing the Commonwealth ideal informed the beliefs of Federalists and Antifederalists alike.[163]
But if Americans in the 1780s universally accepted the fundamental principles of the parliamentary cause of the 1640s, the English Civil War's lessons directly touching the army and citizen-soldiers were not [Page 447] unambiguous. The victorious (parliamentary or) English army was a republican army in the sense that it comprised civic-minded, independent-thinking, politically conscious citizen-soldiers fighting expressly for the public good (the Commonwealth).[164] Oliver Cromwell's New Model Army was, however, also arguably the first modern regular army.[165] Ploughmen and artisans rallied to the "Good Old Cause"[166] for nonmercenary purposes, but they became full-time, highly regimented professional soldiers, differentiated according to merit and function, not according to birth and station.[167] More even than being in the service of the state, they became, or endeavored to become, the state.[168] Finally, with the paradigmatic passing (or ossification?) of their virtue and revolutionary idealism, they became something that bore a marked and disturbing resemblance to a standing army,[169] which example Americans of the immediate pre-Revolutionary period firmly eschewed.[170]
Beyond this, even the militia and the system of militia [Page 448] administration became problematic in the aftermath of the English Civil War. Under the rule of the major generals, Cromwell organized all of England into full-time militia districts, which were regimented, standardized, and supervised to an extent that, with the waning of revolutionary Puritan zeal, seemed oppressive.[171] As Commonwealth gave way to Protectorate and finally to Restoration, not only Cromwell's one-time secretary John Milton mused upon the waning of republican glory.[172] In 1656, James Harrington published his Commonwealth of Oceana, the classical republican parable of England and its political culture. He expounded the ideal of the citizen-soldier-statesman transferred from Florence into English idiom. Harrington's imagination brought forth a militiaman who might never have won the war, but who nonetheless represented the militia's most stoically civic and individualist principles.[173] This fantasy of the early Cromwellian Commonwealthman, rather than the living veteran struggling for political accommodation after the war, passed into the pamphlets of later generations of Real Whig English opposition thinkers, and from thence into the spirit of "76, and finally, in transfigured form, into the militia mythos of today.[174]
3. The Glorious Revolution and the English Bill of Rights of 1689
The English Commonwealth/Protectorate was a military republic, spending as much as ninety percent of government income on the army, navy, and militia.[175] After the death of Oliver Cromwell in 1658, parliamentary and republican leaders proved unable to resurrect a political consensus in favor of either the military establishment or the administrative and revenue mechanisms necessary to sustain that [Page 449] martial system. In the end, the Protectorate collapsed under the combined weight of its military apparatus and its inability to forge a constitutional consensus settling and legitimizing its own continued existence.[176] But Restoration of the monarchy in 1660 only recast the fundamental military/constitutional questions of the day, it did not submerge them. Old Commonwealthmen and new Whigs soon perceived familiar abuses in Stuart military policy. Criticism of the Crown and the army became widespread in the 1670s; in the next decade, "No Standing Army" became with "No Popery" the most prominent mantra of Opposition politicians and pamphleteers.[177] At length, the Country/Whig/Opposition joined forces with William of Orange to thwart the Stuart vision of an absolutist Britain and usher in a constitutional monarchy. The English constitutional Settlement achieved with the Glorious Revolution of 1688-89 embodied principles that would remain fundamental to the framers of the American Constitution and Bill of Rights one hundred years later.[178] The accommodation the Convention Parliament reached with William and Mary after the flight of James II was memorialized in the Declaration of Rights of February 12, 1688; consisting of two sections, a written catalogue of grievances against the old executive, and a set of stipulations of parliamentary and individual rights that the new monarchs bound themselves to respect.[179]
The Declaration of Rights spoke to the same concerns over maintenance of standing armies and disarmament of the citizen army that prompted passage of the American Second Amendment in the next century. The Declaration reflected Whig resentment of the Stuart government's confiscation of arms in opposition strongholds, where the militia could not be expected to side with the Crown in the event of a new civil war. Likewise, it condemned royal establishment, without full parliamentary authorization, of a large, professional army composed disproportionately of Irish Catholics and officered by the Crown's Catholic sympathizers, in clear violation of the Test Act of 1661. As [Page 450] critics of the Stuart Court declaimed throughout the 1670s and '80s, this new army was designed not to protect English security or even to project English interests abroad, but to provide employment for royal favorites and to cow and harass the parliamentary opposition that considered itself the natural defender of the Protestant nation against royal and papal usurpation.[180]
At the center of the first section of the Declaration of Rights was the charge that "the late King James the Second, by the Assistance of divers Evil Counsellors, Judges, and Ministers Employ'd by Him, did endeavor to Subvert and Extirpate the Protestant Religion, and the Laws and Liberties of the Kingdom."[181] In its indictment of the old monarchy, the Convention complained that the deposed king conspired to violate religious and political liberties by such abusive means as
Levying Money for and to the Use of the Crown, by Pretence of Prerogative, for other time, and in other manner, than the same was granted by Parliament[,] [Article 4]
[R]aising and keeping a standing Army within this Kingdom in time of Peace, without consent of Parliament; and Quartering Soldiers contrary to Law[,] [Article 5] [and]
[C]ausing several Good Subjects, being Protestants, to be Disarmed at the same time, when Papists were both Armed and Imployed contrary to Law. [Article 6][182]
Among the royal concessions demanded by the Convention Parliament in the second section of the Declaration of Rights were stipulations
That levying of Money for or to the Use of the Crown, by pretence of Prerogative, without Grant of Parliament, for longer time, or in other manner, than the same is or shall be granted, is Illegal[,] [Article 4]
That the raising or keeping a standing Army within the Kingdom in time of Peace, unless it be with Consent of Parliament, is against Law[,] [Article 6] and
That the Subjects which are Protestants may have Arms for their Defence suitable to their Condition, and as allowed by Law. [Article 7][183]
With these last three provisions, the Convention secured legal protection for the English polity against royal funding of standing armies by illegal taxes, against royal maintenance of unfunded standing [Page 451] armies during peacetime without parliamentary consent, and against royal disarmament of subjects Parliament deemed suited to bearing arms in the militia. In so doing, the Convention constitutionalized the Whig theory of legislative supremacy that had animated anti-army politics throughout the seventeenth century, and effected a major shift in the locus of sovereignty from Crown to Parliament. As Lois Schwoerer suggests, the crown that William III accepted in 1689 was hence a very different crown than that for which Charles I raised his standard in 1641, for which he lost his head in 1649, and to which his son was restored in 1660.[184]
Although the Convention Parliament could successfully make a bloodless revolution, it could not, technically, speak with the sovereign's voice under accepted principles of constitutional law.[185] It was a fundamental axiom of the ancient law that only "the King in Parliament" was sovereign over the English people. The Convention, however, had been elected and convened with the throne "vacant" following James's "abdication."[186] It was therefore with a view to legitimacy that an act of the Convention transformed that body into a constitutionally familiar Parliament soon after William and Mary's coronation, and that Parliament then reduced the Settlement embodied in the Declaration to proper statutory form in the Bill of Rights on December 16, 1689.[187] Changes were made in the statutory language specifying the order of succession to the throne, requiring that the monarch be Protestant, clarifying the prohibition on the dispensing power (by which Charles II and James II authorized individuals to disobey the law), and adding a preamble and segues; but the language regarding standing armies and the right to arms remained identical to that used in the Declaration of February 12.[188] In that form, the right to arms remains established in Britain to this day.[189]
The earliest draft of the Declaration of Rights, known as the Heads of Grievances, said more about arms and the militia than the final versions of the Bill of Rights and the Declaration. The Heads of Grievances, reported by a radical Whig-dominated rights committee in [Page 452] the House of Commons on February 2, 1689, ten days before the Declaration passed, included the statement that "the acts concerning the militia are grievous to the subject,"[190] and further circumscribed the right to arms by stipulating that "[i]t is necessary for the public safety, that the subjects, which are Protestants, should provide and keep arms for their common defense, and that arms which have been seized and taken from them be restored."[191]
Recently, much debate concerning the amendments that the American Congress proposed in 1789 has focused on the clauses enacted and rejected by the English Parliament in 1689. One argument favored by Joyce Lee Malcolm and a growing entourage of individualist interpreters of the Second Amendment concerns the deletion by the House of Lords of the just-quoted language from the arms and militia clauses proposed in the Heads of Grievances. Striking this language¾and in particular deleting the "arms for their common defense" clause¾Malcolm argues, demonstrates that the Convention Parliament was concerned not with protection of the militia, but rather with preserving a private, personal, and individual liberty to keep weapons for any purpose whatsoever.[192] While Malcolm's analysis dwells heavily on deleted passages, she pays less attention to the plain meaning of the text actually enacted. Moreover, her argument concerning the likely significance of the deletions suffers from its failure to take count of the legislative context in which the "common defense" clause was expunged.
The original draft submitted by the rights committee called for the protection of two sorts of rights: those which were¾at least arguably¾already established by English law, and those which would require enactment of new statutes to become part of the corpus juris. Responding to suggestions made by the Upper House when it reported back its marked-up copy of the rights committee's draft, the full House of Commons first classified enumerated rights based on whether or not their establishment required creation of new law, and then voted to [Page 453] strike each and every clause guaranteeing a right not firmly established under existing law.[193] This "shift to the right" eliminated not only the proposed injunction against militia disarmament containing the "common defense" clause, but ten other cherished Whig principles as well.[194] It struck from the Declaration all of the radical Whig assertions as to what new laws the new king should accept, and left intact only the "undisputed" and "ancient" rights that King James stood accused of violating and Prince William was asked to acknowledge before accepting the crown. By curtailing the scope of the rights proffered by the radical Whig¾dominated rights committee, party managers hoped to render the constitutional settlement less revolutionary in appearance, and hence more palatable to moderate Whigs, Tories, conservative elements in the House of Lords, and to Prince William himself.[195] In this light, elimination of the militia clause and the other putative statutory innovations did not reflect the triumph of privatistic individualism, but rather a concession to corporatist traditionalism. This was common ground to Whig, Tory, aristocrat, gentleman, guild member, and craftsman alike, all united in resistance to absolutism. At the same time, the deletion helped conciliate parliamentary lawyers who opposed the Stuarts' extralegal rule, but scrupulously stayed within the bounds of the established law as they indicted the old regime.[196]
The plain meaning of the enacted language, like the legislative context from which that language emerged, also undermines Malcolm's reading. If the rights committee version allowed subjects to have "arms for their common defense," the enacted language allows subjects "[a]rms [only] for their Defence suitable to their Conditions and as allowed by Law."[197] This statutory language patently stops short of conveying an unfettered general license to carry weapons. And in so far as our ultimate concern remains with text that actually became (codified or memorialized) law, the insertion rather than the deletion is of course the most significant feature of the Lords' amendment. Instead of guaranteeing arms to all who would mobilize for the common defense, the Declaration of Rights acknowledged the right to possess such personal arms as were suitable to the subjects' "conditions," meaning class or station. And the stipulation that such arms be "allowed by law" [Page 454] not only incorporated all of the restrictive, class-oriented gun and game laws enacted since Parliament first limited small firearms ownership in 1541,[198] but simultaneously held out an invitation to pass new statutes further clarifying and controlling the right to arms, which Parliament quickly accepted.[199] Neither the Declaration nor the Bill of Rights, then, created a new universal right to hold weapons without prior parliamentary or customary license.
In any case, in 1789 the framers of the American Second Amendment chose not to employ the language of the English Bill of Rights regarding the right to "have Arms." James Madison, who had labored so hard to bring about the separation of church and state in Virginia, had no desire to saddle the American Bill of Rights with religious qualifications.[200] Still, it is useful to reflect that the language of 1689 resonates with the same powerful suspicions of a potentially subversive military establishment that informed the Second Amendment. Not only did the English Bill of Rights warn against the dangers of a standing army, but it complained that under the closet Catholic, James II, the wrong sort of men¾unrepublican men, who took their orders from a foreign prince (the "Bishop of Rome," i.e., the Pope) rather than arriving at political decisions independently¾had been entrusted with arms ownership for service to the state.[201] If Americans were by 1789 moving slowly away from anti-Catholicism as the touchstone of republicanism,[202] they had hardly abandoned the [Page 455] belief that there were those whose character and political principles fitted or unfitted them for military service or leadership. Nor had they given up entirely the notion that provisions of the constitutional law might serve to optimize the civic virtue of individuals in military service.[203] But as developed below, a large measure of Madison's innovative genius in the organic Constitution is reflected in his reliance on federalism and formal separation of powers rather than constitutional reification of the republican character to preserve the political stability that came from republican military institutions.[204] As we shall see, under the government established by Madison's seven original articles, armed service by Catholics seemed far less dangerous than in Stuart England, not only because Protestantism's enhanced regional and global security made toleration of Catholics inherently less threatening, but because neither of the political branches of the new national government was given the ready ability or impetus to turn a standing army against the nation. Yet unlike Madison, the Antifederalists remained skeptical of any central power, no matter how circumscribed by checks and balances. They insisted that the survivability of republican institutions was linked inexorably to the civic character of individuals, and saw in universal, but noncompelled, militia service not only a safeguard against the monarchic standing army, but [Page 456] affirmation of the republican character upon which the militia ideal was based.[205]
4. The Opposition Tradition and Its American Reception
The parliamentary government that emerged in Britain after the accession of George I in 1714 was based on one-party consensus. Nearly every member of Parliament professed himself a Whig and endorsed the Settlement and Bill of Rights of 1689, parliamentary supremacy, Hanoverian rule, and the (parliamentary) union with Scotland of 1707.[206] Consequently, British opposition of the period was mainly extraparliamentary. "Country" opponents of the administrative style pursued at court by a narrow circle of ministers and Parliamentarians under the control of Robert Walpole expressed themselves largely by pseudonymous newspaper and pamphlet denunciations of the government. Pamphleteers of this era¾most importantly Viscount Bolingbroke and the tandem of John Trenchard and Thomas Gordon¾invoked the republican spirit of the past century to serve as a foil to the corrupt, commercial, administrative ethos of the times.[207] While remaining marginal in England, the writings of the "Real Whig"[208] opposition school resurfaced with renewed vigor in America during the 1760s and '70s.[209] As Bernard Bailyn demonstrated in his compilation, Pamphlets of the American Revolution,[210] this [Page 457] opposition dogma of early Hanoverian England, in the form of reprints, recapitulations, and pseudonymous rehashing, became the driving intellectual engine of the American Revolution.[211]
Antipathy to standing armies was a central precept of Trenchard and Gordon's Real Whiggery that resonated well in American ears.[212] According to Bailyn, American colonists "universally agreed"[213] with Trenchard's famous 1697 Argument, Shewing, that a Standing Army Is Inconsistent with a Free Government . . . . [214] There, Trenchard set down how "unhappy nations had lost that precious jewel liberty . . . [because] their necessities or indiscretions had permitted a standing army to be kept amongst them."[215] Indeed, militarism was widely blamed for the collapse of republican government in Venice, Sweden, and Denmark,[216] and militarism was feared as the most likely cause of the demise of republicanism in British America.[217]
Some pamphleteers used the standing army issue as a springboard for individualistic panegyrics on the virtue of provincial militia, and unfavorable comparisons between these stoic rustics and the decayed, shiftless characters who made up Britain's "mercenary" professional army. Thus, in 1773 a "British Bostonian" admonished the home country not to "make the Americans subject to their slavery." "Americans," this Bostonian fumed,
will not submit to be SLAVES, they know the use of the gun, and military art, as well as any of his Majesty's troops at St. James's, and where his Majesty has one soldier, who art in general the refuse of [Page 458] the earth, America can produce fifty, free men, and all volunteers, and raise a more potent army of men in three weeks, than England can in three years.[218]
In a similar vein, but with less certainty and a greater sense of balance, the English Real Whig Richard Price commented in the aftermath of the American Revolution that
Free States ought to be bodies of armed citizens, well regulated, and well disciplined, and always ready to turn out, when properly called upon, to execute the laws, to quell riots, and to keep the peace. Such, if I am rightly informed, are the citizens of America.
. . . .
The happiest state of man is the middle state between the savage and the refined, or between the wild and the luxurious state. Such is the state of society in CONNECTICUT, and in some others of the American provinces; where the inhabitants consist, if I am rightly informed, of an independent and hardy YEOMANRY, all nearly on a level¾trained to arms,¾instructed in their rights¾clothed in home-spun¾of simple manners¾strangers to luxury¾drawing plenty from the ground¾and that plenty, gathered easily by the hand of industry . . . . [219]
The eighteenth-century republicanism on which the Revolutionaries drew so heavily focused as much on constitutional balance as on the centrality of arms possession to republican character. In eighteenth-century America, republicanism not only served to champion public over private purposes, the ideology also accommodated itself to a collectivist vision of politics. Thus, in 1774, Josiah Quincy, a future signer of the Declaration of Independence, cautioned that "supreme power is ever possessed by those who have arms in their hands and are disciplined to the use of them."[220] As Bailyn writes with a nod to Jefferson's Rights of British America, colonists on the eve of independence agreed "absolute danger to liberty lay in the absolute supremacy of "a veteran army'¾in making "the civil subordinate to the military . . . instead of subjecting the military to the civil powers.'"[221] [Page 459]
Less visionary than Harrington's 1656 treatise Oceana, eighteenth-century republicans rehearsed endless object lessons in the demise of actual historical commonwealths that had gone over to corruption and civic passivity.[222] All the while they stressed institutional balance alongside individual virtue as barriers against corruption and absolutism.[223] The standing army remained their arch symbol of a corrupted polity, but this reflected the standing army's tendency to subvert legislative independence as well as its displacement of virtue from the individual. By the middle of the eighteenth century, fear of power, corruption, and the imperial magistracy were eclipsing the independence of the soldier-statesman as principal icons of republicanism in Anglo-American constitutional discourse.[224]
5. Rethinking the Provincial Militia during the Great War for Empire
One reason behind the changing role of the militia in American political thought is that the militia was itself declining as a military and indeed as a cultural institution in the pre-Revolutionary years.[225] As the frontier receded westward during the first half of the eighteenth century, the danger of Indian attack became ever more remote in the settled, relatively populous eastern counties. By the time of the French and Indian War (1757-64), compulsory militia service proved unenforceable.[226] According to Professor Lawrence Cress, Americans in
the middle of the eighteenth century . . . no longer considered defense the responsibility of the entire community . . . . The militia had not disappeared, but it had all but lost its military significance, becoming more a reflection of local political relationships and a lingering symbol of the responsibilities as well as the rights of a citizen in a free society.[227]
Not only had the institutional militia decayed in the established [Page 460] colonies, but many, if not most, easterners no longer possessed that familiarity with firearms and marksmanship that frontier existence reputedly instilled in their grandfathers and great-grandfathers.[228] Few even owned guns or complied with regulations mandating that militia members maintain government-issued muskets at home.[229] And with little immediate stake in imperial rivalries between France and Britain, and no sense of peril from France's Indian allies, few eastern farmers of middling means rallied to the royal cause from 1757 to 1764. Those militiamen who made muster tended to vanish when ordered into long campaigns outside the borders of their home colonies.[230] British and provincial authorities soon realized that success against French arms in North America would depend on regulars[231]¾that is, British soldiers¾and long-serving colonial volunteers.[232]
George Washington, a militia colonel and wealthy Virginia squire with considerable speculative and patriotic interests at stake in the French and Indian War, was one Anglo-American who shared British sentiments wholeheartedly.[233] Reflecting on militia units under his command during the early stages of the war, he wrote his British commander:
Militia, you will find, Sir, will never answer your expectation, no dependence is to be placed upon them; They are obstinate and perverse, they are often egged on by the Officers, who lead them to acts of disobedience, and, when they are ordered to certain posts for the security of stores, or the protection of the Inhabitants, will, on a sudden, resolve to leave them, and the united vigilance of their officers can not prevent them.[234]
Indeed, Washington was so dispirited by the performance of his own militia, and so impressed by the British regulars with whom he served in Braddock's ill-fated campaign and afterwards, that he could only hope exposure to the regulars might help transform the Virginia militia into a respectable and efficient fighting force. "Discipline," he wrote optimistically, "is the soul of an army. It makes small numbers formidable; procures success to the weak, and esteem to all; and may, in a manner peculiar to us, who are in the way to be joined to Regulars in [Page 461] a very short time, . . .[set us apart] from other Provincials."[235]
The French and Indian War ended successfully for Washington and the Americans, with the Treaty of Paris in 1763 securing British sovereignty in Canada and, in the process, severing the connections between hostile frontier Indians and their French allies and arms suppliers. But in the years after the war, Anglo-American colonists became restive in the face of Britain's increasingly aggressive American tax enforcement policies¾policies that resulted largely from victory over the French and the consequent burdens of policing an enlarged New World empire.[236]
6. A Constitutional Crisis and a Standing Army: The Republican Nightmare Becomes Reality
In 1763, the subjects of George III's established American dominions seemed the most contented, patriotic, and British of peoples.[237] But in the victory over France and in the completeness of Britain's conquest of North America lay seeds of discontent that ripened into the old Empire's dissolution, consummated only twenty years after the Treaty of Paris in a second treaty of the same name. At the root of the impending troubles was the problem of war debt. The conflict of 1757¾63, the fourth of seven titanic struggles for empire that kept Britain and France at war more years than not between 1697 and 1815, was the most expensive yet.[238] George III, young, headstrong, friendless save for his tutor Bute, and determined to rule as well as reign, confronted at war's end a national debt of £122,603,336.[239] To compound the situation, policy considerations favored maintenance of the wartime army rather than demobilization.[240] Policing the Indian frontier, keeping up garrisons in the strategic towns of Halifax, Quebec, and St. Augustine, and sinking the record debt required revenue.
All this left the king's new prime minister, George Grenville, desperately seeking fresh sources of income. A wine tax at home irked members of Parliament and their kin; a cider tax produced riots. [Page 462] Meanwhile, the American colonies were hardly taxed at all¾yet were inhabited by some of the most prosperous and fortunate people on the face of the globe. To the ministry, it seemed all too obvious that the Americans should help pay for the army that delivered them from the French and protected them from the Indians.[241] The remaining decade of British rule in America was given to futile efforts to discover an effective formula for imposing and collecting this American contribution to the exchequery. Little did Grenville know how deeply he and his successors would offend the colonists' sense of constitutional propriety by imposing imperial taxes.
From the American perspective, the various tax schemes of the 1760s and '70s - the Stamp Act, the Sugar Act, the Townshend Duties, and the Tea Act - presented, with different degrees of vexatiousness, the same series of problems. Principally, the taxes were deemed unprecedented, usurpatory, and, therefore, threatening.[242] To the provincial lawyers, printers, and political agitators destined to lead a revolution, these tax-related issues appeared fundamentally as problems of constitutionalism. The American sense of constitutionalism, moreover, was more historical than legalistic. It focused, as we have argued, on a Whiggish interpretation of seventeenth-century British history, and in particular, on the Glorious Revolution, Settlement, and Bill of Rights of 1689.[243] As Britain essayed ever-bolder tax collection schemes, Americans came to realize, with more than a little sense of shock, that the British ministry did not share the Americans' interpretation of the British Constitution. The more Americans stressed the fundamental Whig maxims at the heart of their understanding of the Settlement, the more they realized British officials did not take their Whiggery seriously. In particular, Americans came to the grim realization that British officials did not understand that the Bill of Rights should apply in favor of American provincial legislatures in precisely the same manner that it applied to benefit the Parliament at Westminster.[244] And given the Americans' own unwavering commitment to the proposition that the principles of 1689 protected them as well as those other Englishmen across the water, it was a forgone conclusion that ministerial imposition of taxes not voted by the legislature(s) for the purpose of maintaining an army and servicing a [Page 463] debt must occasion a constitutional crisis.
It would be difficult to overestimate how Whiggish Americans were in the closing days of the old Empire. Reprints of Trenchard and Gordon's Cato's Letters, those famous republican denunciations of the Walpole government that ran originally in newspapers of the 1720s, appeared in nearly forty percent of the public and private libraries in late colonial British North America, then the most literate society in the world.[245] Cato of course laid down a precise, analytic description of the eschatology of a republic's demise.[246] And one by one in the 1760s and '70s, Cato's steppingstones on the road to subversion surfaced before the colonials' horrified eyes. Not only did the ministry attempt to enforce internal taxes voted by the Westminster Parliament in which the Americans were not represented, but it dispatched a swarm of revenue officers to serve in hitherto unknown posts and established incentives for these officials to seize property, cargo, and even ships for sometimes trivial reasons. Not only did the ministry expand the role of both provincial and Crown executives in local affairs, it sought to free royal governors from provincial legislative control by paying their salaries directly from London.[247] When the New York Assembly hesitated to provide funds to compensate property owners for quartering regulars, the ministry ordered the Assembly suspended.[248] And when restive locals embarked on a campaign to intimidate royal administrators in Boston¾unlike New York, not an established garrison town¾the newly established Colonial Office in Whitehall ordered British regulars to occupy the city.[249]
No aspect of the imperial taxation regime spawned greater resentment than the employment of a standing army to buttress British authority in the unruly colonies. Historically, Americans had not questioned the British army's limited presence in the colonies.[250] Smallish coastal garrisons in Savannah and Charleston were welcomed as deterrents against Spanish or Indian raids and even slave insurrection, and the nearby presence of full regiments at St. Augustine afforded both economic advantage and a sense of security.[251] [Page 464]
While some citizens in New York complained of crassness and bad manners on the part of soldiers in the town's midsized garrison, others welcomed the army and navy's trade. Outside the Deep South and New York City, the army was largely unknown, with the bulk of Britain's American strength stationed in scattered posts in the interior, and large garrisons in Canada and the Caribbean. The standing army was distant, and Americans largely assumed the Bill of Rights and parliamentary supremacy would protect them against the sort of militarist abuses associated with the Stuarts.[252] But attitudes changed drastically in the late 1760s as British officials first questioned the applicability of constitutional guarantees to the colonies, and then redeployed substantial western garrisons to New York and Boston to prop up the new customs collection apparatus.[253]
The arrival of four regiments of regulars in Boston on October 1, 1768 confirmed the worst fears of Whiggish patriots. It is "the indefeasible right of subjects," the Boston Town Meeting swiftly resolved,
to be consulted and to give their free consent in person or by representatives of their own free election to the raising and keeping a standing army among them; and the inhabitants of this town, being free subjects, have the same right derived from nature and confirmed by the British constitution as well as . . . [their] royal charter; and therefore the raising or keeping a standing army without their consent in person or by representatives of their own free election would be an infringement of their natural, constitutional, and charter rights . . . . [254]
Although doomsayers had long suspected Governor Bernard would seek the aid of troops from nearby Halifax, few were prepared for the initial sense of dismay, alarm, and disbelief that accompanied the sight of the army disembarking in Boston harbor. "To have a standing army! Good God! What can be worse to a people who have tasted the sweets of liberty!" Andrew Eliot wrote to Thomas Hollis when he first sighted the troop ships in Boston harbor. "Things are come to an unhappy crisis; there will never be that harmony between Great Britain and her colonies that there hath been; all confidence is at an end; and the moment there is any blood shed all affection will cease."[255] [Page 465]
As the ubiquitous republican Cato described presciently the events that would come to pass as an antirepublican conspiracy uncoiled, so too did he set forth in his Letters precisely what steps to take to stave off subversion and save the Republic.[256] These steps, familiar enough to every sentient colonial, were the very steps taken by the first Whigs in the 1680s, when the party of Shaftesbury and Locke rose in resistance to Stuart usurpation and articulated the fundamentals of Whiggery that in American minds formed the bedrock of English constitutionalism.[257] The course of resistance to tyranny flowed naturally from loyalty to the true Constitution. And in the face of illegal taxation, executive usurpation, and army occupation, the colonists' self-evident constitutionalist remedies included refusal of local courts and juries to enforce Crown directives, reassertion of local legislative supremacy, and revival of the local militia.
The presence of the army, in its new, alarming role, signaled the need to implement resistance according to this familiar Whig paradigm. Colonists most attuned to politics and ideology took the lead in goading less radical countrymen into a heightened state of political awareness and participation. Following the occupation of Boston, agitators and philosophers unleashed a torrent of republican anti-army pamphlets celebrating the virtues of provincial citizen militia and denouncing the perceived depravity of the imperial army.[258] The Journal of the Times articles, syndicated throughout the colonies, furnished a day-by-day account of Massachusetts "under military rule,"[259] and the circulars distributed by the Boston committee of correspondence consciously hearkened back to the seventeenth century's radical, insurrectionary opposition.[260] But even though Revolutionary theorists and pamphleteers pointed the way towards military confrontation, during the first occupation of Boston (1768-72), violent resistance to Crown authority remained confined largely to intimidation of politicians and officials, tarring and feathering, rioting, and ransacking of houses.[261] A large majority of the population remained committed on some level to reconciliation and reestablishment of civilian rule within the theoretical [Page 466] confines of the old order, and local government nowhere crossed over into organized, armed resistance to the established sovereign.[262]
The army withdrew not long after the acquittal of the soldiers tried for the Boston Massacre, and the repeal of the Townshend Duties restored a kind of calm before the storm in the early seventies.[263] But in December 1773, the Sons of Liberty dumped the cargo of three British merchantmen into Boston Harbor to protest the Tea Act by which Westminster reasserted its taxing power over the colonies, and Parliament responded quickly with the Boston Port Act (closing the port to trade), the Administration of Justice Act (removing venue to England for criminal trials of Crown officers), the Massachusetts Government Act (vesting legislative and jury functions with the executive), and the Quartering Act (permitting seizure of unoccupied buildings, such as empty warehouses, to serve as barracks).[264] Troops returned from Halifax to strengthen the garrison at Castle William in the harbor, and others took up quarters in the town itself.[265]
Intercolonial economic resistance to British occupation and policy resumed according to patterns of cooperative nonimportation and nonexportation established during the Stamp Act and Townshend Duties crises. But within Massachusetts itself, political resistance via the traditional, constitutional organs of civil government was now defined as illegal, if not treasonous. As appeals to law and reason proved unavailing, the Lockean moment of dissolution of government and the appeal to heaven loomed ever likelier. Thus, the Intolerable Acts inspired Massachusetts's General Court and many of the other provincial legislatures to reanimate their colonies' historic militia to serve as constitutional counterweights to the redcoats. Arms were purchased in Europe,[266] militia laws were enforced, and training was intensified.[267] By the spring of 1775, when General Gage, commander of the British regiments around Boston and royal governor of Massachusetts, issued orders to surrender to central storehouses militia arms previously kept in private homes and ordered the army to confiscate arms not duly turned over to the government, colonial [Page 467] hostility towards ministerial policy had swollen to a fever pitch.[268] In March, the army seized gunpowder in Charleston and cannon in Cambridge without encountering resistance.[269] But shots were fired on April 19, 1775, when provincial militia at Lexington and Concord confronted British regulars searching for colonial powder stores.[270] By nightfall, over one hundred soldiers and militiamen lay dead and dying,[271] and invasion, independence, and eight years of war were in the balance.
7. The Continental Army and the Militia during the American Revolution
Soon after American protest escalated into armed resistance, republican rumination about standing armies clashed with the hard reality of military campaigning. Given his tastes, sentiments, and especially his unsatisfactory experiences with militia units during the French and Indian War, it is hardly surprising that Washington quickly set about forging a regular army upon his appointment as commander in chief by the Continental Congress on June 15, 1775.
"Let us have a respectable Army, and such as will be competent to every exigency," the commanding general pleaded to Congress.[272] While the effort to create a regular army met with considerable hardships through the course of the war, the performance of militia under his command only intensified Washington's compulsion to mold a European-style professional force under Continental colors.[273] After the American disasters at Long Island and Brandywine during the summer of 1776, Washington informed Congress that if he were "called upon to declare upon Oath, whether the Militia have been most serviceable or hurtful upon the whole; [he] should subscribe to the latter."[274] "Regular Troops," the general later reflected,
alone are equal to the exigencies of modern war, as well for defence as for offence . . . .No Militia will ever acquire the habits necessary [Page 468] to resist a regular force . . . .The firmness requisite for the real business of fighting is only to be attained by a constant course of discipline and service. I have never yet been witness to a single instance that would justify a different opinion ... .[275]
Washington's opinions, while they were untempered, were hardly idiosyncratic. Indeed, the disillusion of military and political leaders with America's historic militia became general and widespread soon after colonial grievances with Britain erupted into war.[276] Still, the militia was not as consistently useless as some of Washington's comments suggest. In the action at Bunker Hill, volunteer companies formed in anticipation of hostilities acquitted themselves very well. But they were defending fixed positions. What Washington realized from the start of the war was that no American militia, not even elite volunteer units who had devoted long hours to training, could successfully engage mainline British regulars in pitched battle on open fields.[277] Indeed, Washington did not have sufficient confidence in his Continentals¾even after the institution of systematic European-style drill under Inspector General Friedrich von Steuben¾to challenge British strength directly with the best of American regular forces.[278] American success depended on surprise, maneuver, an excellent artillery arm, and taking outnumbered British detachments at a disadvantage. The principal American victories¾Trenton, Princeton, Saratoga, and Yorktown¾were all of this pattern. When American infantry units met the main British army head-on, as on Long Island or at Brandywine, the result was invariably a rout. Final victory owed far more to American perseverance, French assistance, and the loss of [Page 469] British political will than it did to any mythical prowess of the backwoods militiaman.[279]
On a theoretical level, the demands of a major war for professional armies contradicted a firmly rooted republican ideology that favored citizen-soldiers. Reality, leaders reluctantly acknowledged, was not consonant with their own revolutionary rhetoric, which dwelled heavily the on civic virtue of citizen-soldiers and the abuses of British militarism in order to justify the American cause. Accordingly, the Revolution demanded some degree of accommodation between political theory and experience. To compound matters, the pure republicanism that had ushered colonials towards separation with relative doctrinal ease suffered serious strains as it passed from a mere opposition creed into a principle of majority government. With the war's end, republican ideology necessarily had to become a philosophy of balanced constitutionalism for peacetime, as much as a theory of individual civic courage best suited to moments of military crises.[280] It was therefore inevitable that the role of the man of arms in American political theory would be rewritten as America settled into independence after the second Treaty of Paris.
Washington, of course, did not desire to see the new nation's security staked on the historic militia system that had proven so inadequate during war. "The Jealousies of a standing Army," he wrote, "and the Evils to be apprehended from one, are remote; and in my judgement, situated and circumstanced as we are, not at all to be dreaded; but the consequence of wanting one, according to my Ideas, . . . is certain, and inevitable Ruin . . . ."[281] But as a leading historian of the United States Army has aptly commented, "Washington himself could not base his prescriptions for the future military policy of the United States solely upon the combat experience of the Revolution."[282] Professor Weigley continues,
The