The Second Amendment Read online

  For today’s readers, it can be slightly dizzying to read the raptures induced in colonial era writers by the ideal of a militia. Sir Francis Bacon, in 1622, wrote, “England, though far less in territory and population, hath been (nevertheless) an overmatch; in regard the middle people of England make good soldiers, which the peasants of France do not.” Adam Smith in The Wealth of Nations, writing in 1776, intoned, “In a militia, the character of the labourer, artificer, or tradesman, predominates over that of the soldier: in a standing army, that of the soldier predominates over every other character.” Americans ladled it on even more thickly.

  Another institution stood as the self-evident opposite to virtuous, egalitarian militias: a standing army.

  In Britain and elsewhere, the king commanded the army, which stood alongside the militias. Soldiers were paid. They were professionals who signed up for a fixed time, were drilled in discipline and obedience, and had no job beyond their military service. Few property owners would dream of enlisting for such a tour of duty. The king could send his army across the country or overseas. One writer explained that regular army soldiers were “a species of animals, wholly at the disposal of government.” Unlike the yeoman farmers who became intermittent militiamen, army soldiers were the “dregs of the people.” Forced through punishment into submission, they survived on discipline. Armies were also expensive. Parliament raised taxes to support them. Give a king an army, it was thought, and he would find a war to fight. One colonist explained, “Money is required to levy armies, and armies to levy money; and foreign wars are introduced as the pretended occupation for both.” People of 1775 did not see the army the way we might today—as a noble embodiment of patriotic spirit, or a force that binds a nation together. They saw the army as tyranny in the making, authoritarianism on the march. To the people of Boston, under military occupation, the British Army was not a representative of “us” but an oppressive force sent by “them.”

  Since the arrival of English settlers in the New World, militias organized by colonial governments provided security and order. Colonists formed militias as soon as they arrived. A colonial era writer explained that for New Englanders, the “near neighbourhood of the Indians and French quickly taught them the necessity of having a well regulated militia.” From the earliest settlements in Plymouth and Massachusetts Bay Colonies, every male automatically enlisted in the militia when he turned sixteen. They were required to bring their own gun. (If they could not afford one, they could buy one on credit.) They mustered often, drilled frequently, and were called up at the service of the colonial governor. At times of emergency, the militias could “impress” or draft able-bodied men to go off and fight. At first, throughout the colonies, militias included nonwhite men. As the slave population grew, though, Southern colonies decided to limit membership. In New England, militias elected their commanding officers, and often decided tactics (such as whether to join in a battle) after ample discussion and a vote.

  Sturdy, virtuous, calling forth the patriotic efforts of a nation of farmers: that was what colonial Americans told themselves about their militias. Even then, much mythologizing mixed with fact.

  Despite the valorous imagery, the militias were often a rusted instrument of defense. At times they were balky. The French and Indian War of 1754–63 required an invasion of Canada; some northeastern militias refused the king’s call. Connecticut Colony’s governor even supported the militia’s opposition to action.

  And though the militias were supposed to be universal, in fact the wealthy and well-born could wriggle out of service. Some paid others to do their time. Exemptions and excuses abounded (the kind that would be familiar in a later era): those in college, or “with important business” could stay home. During the French and Indian War, all able-bodied men were supposed to join a militia. One military historian notes “it seems never to have crossed the introspective mind of young John Adams that he was exactly the right age to serve.”

  Another problem reared often: too few guns of the right type. Weapons were not cheap, and most Americans allocated their scarce resources to guns that were lighter to carry and more useful for shooting birds or killing vermin. Colonial legislatures repeatedly passed laws requiring able-bodied men to obtain military-quality muskets, and repeatedly nothing happened. In some colonies, militia members demanded that government provide guns. They were hard to keep in working order, and their aim was inaccurate. The colonies had few gun factories. Many militiamen showed up at Lexington Green without military weapons.

  In the decades before the Revolution, militias had declined in importance. “When no danger was in the offing,” historian Edmund Morgan recounts, “training day was a boisterous holiday, accompanied by light talk, heavy drinking, and precious little training.” Some urged greater discipline. “But most Americans were content with the festivity and the easier, looser variety of subordination that went with training days, when the soldiers delighted in surrounding a pretty girl and firing their muskets in the air, while officers dashed about in glittering uniforms that bespoke social rank more than military prowess.”

  Britain’s Stamp Act of 1765 changed that. London had sent the army to secure the western frontier in the French and Indian War. Now it sought to pay for it. Parliament, frustrated by resistance from across the Atlantic, began to ratchet up taxes and punitive laws. What followed was a cascade of miscalculations, with new taxes and rules from London, increasingly bold resistance by colonists, retreat and newly tightened imperial screws by the crown. Suddenly the colonial militias were vital, even dangerous. Whig militias, opposed to the crown, began to elect Whig officers. Training, recruitment, maneuvers, and marching stepped up. Britain imposed an arms embargo. Colonists began to buy and collect guns, smuggling them from the Continent. In 1774, Parliament passed the Coercive Acts, designed to tighten pressure on New England. Massachusetts’s Provincial Congress responded. It formed the Committee of Safety, stockpiled arms, and required all men between sixteen and fifty to “enlist.” Some communities formed “Minute Men.” Gunpowder (some of it stolen from the British) was stored as “common stock.” In Lexington, for example, townspeople kept the powder beneath the pulpit in the Congregational meetinghouse. Throughout 1774, Americans gathered in large, patriotic militia parades up and down the colonies.

  By the clash at Lexington and Concord the next spring, the militias had revived as an established system of defense. Many men had fought in the war against the French, or had been engaged in battle on the fringes of empire. They drilled in tactics learned in a century of combat. Now as panic spread throughout New England, militias from neighboring towns and colonies mobilized and descended upon Boston. Some twenty thousand citizen soldiers from throughout New England ringed the hillsides overlooking the city. Two months later, the British Army tried to break out of Boston by seizing Breed’s Hill in Charlestown. After two tries, the regulars took the high ground, but they won a Pyrrhic victory in the battle named after the proximate Bunker Hill, with staggering losses. The revolutionary government of Massachusetts enacted a law strengthening the requirement that men between sixteen and fifty enroll, train, and join their militia. They were required to bring their own weapons and equipment. The colonies were swept up in what a French visitor called a Rage Militaire, an infatuation with the militias that led even noncombatants to dress in rough-hewn militia garb.

  In these first days of revolution, Americans reveled in the thought that “the people” were at last facing off against a monarch. As we grapple with the thought of the Founding generation, it can be hard to reckon with the degree to which this notion of the whole people takes on a misty, sentimental quality. One is reminded of the homages to “the people” in, say, Popular Front folksongs of the 1930s. “The people” were sovereign, and not only were the source of legitimacy for the government, but were expected to carry the burden of making—and defending—the government, too. The set of ideas we now know as “liberalism”—an efficient and strong government, chosen b
y the people but not intimately involved with them, with individual liberties being protected above all in a continent-wide market economy: that lay in the future.

  In a time when political equality was only vaguely embraced, the militia was one way for colonists to express a yearning for democracy. The revolutionaries who assumed control of state governments in 1775 and 1776 wrote new constitutions, many enshrining the militia, and making clear that ordinary citizens were to bear arms in its service.

  Consider the Declaration of Rights passed by the Virginia legislature in the spring of 1776. This document famously began by declaring, “all men are by nature equally free and independent, and have certain inherent rights . . . namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety,” language borrowed (and edited) by Thomas Jefferson for the Declaration of Independence a few weeks later. Virginia’s declaration continued, explaining the role of the militia and army in this new constitutional vision:

  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, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

  In the Old Dominion, plantation owners ruled. It was assumed that the “better” men would predominate. What about states beyond Virginia? Pennsylvania’s new government was far more radical. Dominated by western backwoodsmen and “mechanics” from Philadelphia, it gave the vote to all male adults, even those without property. Military service spanned all classes: so should political power. A Philadelphia editorial explained that the vote should belong to “every man who pays his shot, and bears his lot.” Pennsylvania’s charter provided for military service, but omitted homage to the “well-regulated militia.” Instead, it declared “that the people have a right to bear arms for the defense of themselves and the State.” John Adams principally drafted the new Massachusetts constitution. It included elaborate procedures for election of militia officers, and revised Pennsylvania’s language to make clear that citizens could “keep” as well as “bear” arms, but only in the “common defence.” (John was the attorney Adams. He had seen the power of rampaging mobs, used to such effect by his cousin Samuel in the years before the Revolution.) Of note, these declarations of rights were appended to the state constitutions. They amounted to exhortations, rather than legally binding commands. As such, they open a window on the thinking of the colonists as they became citizens of a new country.

  That spring of 1775 marked the high point for militias, and for the vision that a citizen force—of men pulled away from home, carrying their own weapons—could match the professionalism of a trained fighting force. For a few months, at least, that seemed plausible. Reality soon intruded.

  THE FORGE OF THE REVOLUTIONARY WAR

  Wars change many things. They reorder thinking, teach hard lessons, jumble social classes. Certainly the American Revolution did that. Among other things, it instantly began to school its leaders in the limits of the much romanticized militia system and the role of the citizen soldier. The men who wrote the Constitution in 1787 were not the same men they were when they rebelled against the crown in 1775.

  Weeks after the bloodshed at Lexington and Concord, the Second Continental Congress convened in Philadelphia. It was a war Congress; its principal challenge, to raise and maintain a fighting force. Immediately it struggled with how to wage a continent-wide conflict against a professional army with a ragtag force of temporary militias.

  Virginia congressman George Washington started the conflict already a skeptic. He had been a leader in the Virginia militia, even as he built his plantation and expanded his businesses. As a young man, Washington even took part in the bumbling first expedition to the Ohio Valley that kindled the French and Indian War (which became a global conflict, known in Europe as the Seven Years War). This early unhappy experience marked and humiliated Washington. Like many colonials, he chafed when treated poorly by British regulars. He never received the officer’s commission in the British Army he craved. But the militias proved as frustrating. When he procured uniforms for that expedition, his troops promptly sold them. Fewer than one in ten of the Augusta County militiamen summoned into action actually showed up. George Washington began the Revolution with fewer illusions than most.

  Still, he arrived at the Continental Congress incongruously clad in a flashy blue and gold militia uniform. This profoundly impressed his new colleagues. John Adams wrote his wife, Abigail, “Colonel Washington appears at Congress in his uniform, and by his great experience and abilities in military matters is of so much service to us.” Dr. Benjamin Rush explained to a friend, “He has so much martial dignity in his deportment that you would distinguish him to be a general and a soldier from among ten thousand people. There is not a king in Europe that would not look like a valet de chambre by his side.” Congress saw political wisdom to have the fighting force at Boston led by a Virginian. It elected Washington commander in chief of a new national army.

  Washington quickly traveled north. He arrived at Cambridge, determined to transform the patchwork of New England militias into something more. Congress had formally incorporated the local forces into an “American Continental Army.” To his new troops, Washington proclaimed that soldiers drawn from the colonies were “now the troops of the United Provinces of North America and it is hoped that all distinctions of colonies will be laid aside.” But as he rode through the camp he found chaos. Militia units were paralyzed by debate. Few gave orders, or followed them. Conditions were filthy. He wrote his brother despairingly that he had found an “army of provincials under very little command, discipline, or order.” Washington was unnerved to learn that the New England militias elected their officers. Shopkeepers and farmers predominated. He expressed his surprise that Massachusetts officers “are nearly of the same kidney with the privates.” He could not persuade Congress to appoint the officers, instead of allowing the governments of each state to do so. In vain he tried to obtain enough cloth to make a common uniform.

  Washington’s troops scored a decisive early victory when they captured fifty-nine cannon from Fort Ticonderoga in upstate New York and dragged them three hundred miles to Boston. The sudden arrival of artillery pointed at the city from Dorchester Heights panicked the British, who abandoned Boston and relocated to New York. Perhaps a force of militiamen, carrying their own arms and drawn from civilian life, might be enough to prevail after all. But the next year taught harsh lessons. Men deserted en masse. “Whole divisions,” reports biographer Ron Chernow, “scampered away in fear.” When enlistments expired, usually after one year, militiamen simply left for home. The militias barely escaped the disastrous Battle of Brooklyn when the British pushed them across the river into Manhattan. From the heights of Harlem, preparing to evacuate once again, Washington wrote Congress in September 1776:

  To place any dependence upon Militia, is, assuredly, resting upon a broken staff. Men just dragged from the tender scenes of domestic life; unaccustomed to the din of arms; totally unacquainted with every kind of military skill . . . [are] timid and ready to fly from their own shadows. Besides, the sudden change in their manner of living . . . produces shameful, and scandalous desertions. . . . Certain I am, that it would be cheaper to keep 50,000 or 100,000 men in constant pay than to depend upon half the number, and supply the other half occasionally by militia.

  Washington’s frankness was not universal. Others flattered the citizen soldiers in public, and scorned them in private. General Charles Lee was a rival for power; even today, Fort Lee stares across the Hudson at Washington Heights. At first, the British-born Lee curried popular favor with his homages to the militia. In 1775, he wrote letters designed for newspaper circulation praising the grit and skill of the Americans, “the zeal and alacrity of the militia.” By the next year, he, too, had ch
anged his tune. “As to the Minute Men,” he now wrote privately, “no account ought to be made of them. Had I been as much acquainted with them when they were summoned as I am at present, I should have exerted myself to prevent their coming.”

  Lawmakers fitfully tried to help. Congress drafted the Articles of Confederation to govern the new nation. “Every State,” they intoned, “shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.” Little happened. Conscription, explains historian Charles Royster, “remained primarily a technique for determining who would hire a substitute rather than for allotting military service.” Pamphleteers continued to churn out paeans to the civic spirit of the militiamen, each bearing their own musket brought from home. But only one third of the American forces that won the Battle of Yorktown and ended the war were from the militia. The ranks of the Continental Army were filled with the poor, including black men, indentured servants, and city dwellers. Commissary General Jeremiah Wadsworth reported to Congress that the Continental Army was comprised of “very idle and very worthless fellows, which did not hinder them from doing their duty.”

  Other revolutionary leaders quickly grew disillusioned with the idea that militias would be enough. The firebrand Samuel Adams, who had been at Lexington, now fretted, “Would any Man in his Senses, who wishes the War may be carried on with Vigor, prefer the temporary and expensive drafts of militia to a permanent and well-appointed army!” Thomas Jefferson, serving as governor of Virginia, despaired about the weakness of the militia. Men refused to leave their state, and discovered sudden maladies. “I had as many sore legs, hipshots, broken backs etc. produced as there were men ordered to go,” he groused.