The Second Amendment Page 3

  For the Americans on the home front, though, the militias’ prestige remained high. They provided security, serving as an internal police force. Militias kept order, rousted (and punished) Tory sympathizers, and warded off Indians on the frontier. In parts of the country they harassed British troops in guerrilla warfare for years, skirmishing with as few as a dozen troops and then melting into the countryside. Whig (Patriot) and Tory (Loyalist) militias flailed at each other throughout, pillaging and engaging in brutal atrocities on both sides. The ferment of war posed special challenges in the slave society of the South. The British had offered freedom to slaves owned by rebels who escaped and crossed the lines to fight with the British Army, and thousands did so. The threat of slave rebellion hung heavily. In the South, militias were beefed up to enforce the plantation system.

  For Washington and the young men around him, the war began a lifelong project to forge a national army and a national identity. “In the early stages of this war,” he later wrote, “I used every means in my power to destroy all kind of state distinctions and labored to have every part and parcel of the army considered as continental.”

  “THE CRITICAL PERIOD”

  With the war’s end, public distrust of a strong government reasserted itself. Not for the last time, Americans found themselves ambivalent about the army that had just fought on their behalf. Communities celebrated with giant feasts, but to use a phrase familiar from later less popular wars, there were no victory parades. Congress disbanded the Continental Army. Demobilization unfolded in near chaos. Promised pensions went unpaid. States began to squabble about who would pay the veterans. There was an undertow of possible conflict between the military and civilians.

  By March 1783, mutinous Continental Army officers edged close to staging a putsch. Outraged by Congress’s unwillingness to provide back pay and promised pensions, they prepared an armed march on Philadelphia. Washington surprised the mutineers at a meeting in Newburgh, New York. This, he told them, was not what they had fought for. He implored the still skeptical officers not to “open the flood Gates of Civil discord, and deluge our rising Empire in Blood.” The restive troops sat unmoved. Then Washington, an avid theatergoer, turned to drama. Fumbling to read a letter, the fifty-one-year-old general reached into his pocket and put on reading glasses. His men gasped: few had seen Washington wear them before. “Gentlemen,” he said gravely, “you must pardon me. I have grown gray in your service and now find myself growing blind.” The meeting dissolved in tears and protestations of loyalty to Washington. Historians often cite the incident as evidence of Washington’s forceful if opaque character—his willingness to forgo power, thus gaining it. To contemporaries, the Newburgh Conspiracy, quickly so dubbed, underscored something more: the dangers to republicanism posed by men on horseback. General Washington saw the threat, even if his rum-fortified officers did not.

  Newburgh offered evidence of what could happen when professional soldiers were set adrift after a war. It was not the only omen. When news finally arrived from Paris of the peace treaty with Britain, recruits deserted and stormed the Pennsylvania State House, demanding payment. Congress fled to Princeton, New Jersey. After the peace, former army officers formed the Society of the Cincinnati. Membership would pass on to their sons. Conspiracy-minded civilians fretted the group could be an aristocracy in the making, or a cabal ready to seize control. Mercy Warren, an early American historian, wrote a London acquaintance bemoaning the influence of the Society of the Cincinnati. In America, she reported, “the young ardent spirits . . . cry out for monarchy.”

  Washington returned to private life. Before he left he sketched out a plan for a Continental Militia, enlisting all adult men but requiring a small group of the best to serve for one month a year. The idea went nowhere. Neither did other proposals. In Virginia, Washington persuaded the state’s governor—the legendary patriotic orator Patrick Henry—to find appointments for Continental Army veterans as officers of the militia. Furious local dignitaries, deprived of the status that came from officer rank, howled. The next year the legislature repealed the law and gave the epaulets back to the civilians.

  Meanwhile, the weak central government under the Articles of Confederation began to fray. States could and did veto federal action. Taxes went uncollected. States competed with each other for commerce and land. The Articles themselves could not be changed without unanimous agreement among the states. Twelve states agreed that Congress should have the power to levy a 5 percent impost tax on imports to pay war debts and fund the government. Rhode Island vetoed it. John Quincy Adams, delivering the commencement address at Harvard College in 1787, called it the “critical period.”

  A portent of anarchy came in 1786. Farmers faced ruinous debts as the economy plummeted after the war. States raised taxes to levels far higher than before independence. Foreclosures and bankruptcy followed. In rural Western Massachusetts, protesters led by Daniel Shays refused to submit to the power of the judiciary. They formed a movement called the Regulators (how that phrase would change meaning!) that marched on the state courts to prevent bankruptcy proceedings. When the Bay State governor ordered the militia to break up the mob, it refused to do so. “Notwithstanding the most pressing orders,” the local officer reported, “there did appear universally that reluctance in the people to turn out for the support of government.” A few weeks later, the governor ordered militiamen to march into Great Barrington, after protesters seized the courthouse. This time, the citizen soldiers took a vote. Most joined forces with the protesters. Finally, early in 1787, the governor found it necessary to raise a special militia, funded by Boston merchants. When an agrarian army of 1,500 farmers tried to seize the federal government’s armory in Springfield, the state’s rump military force did battle and suppressed the Regulators.

  Shays’ Rebellion and the feeble response to it sent shivers. Militias represented the new country’s military force. But if they could not put down civil unrest—or be counted on not to switch sides—how could the nation hold together? Delegates to a conference in Annapolis, Maryland, called to revise the tariff policies, already had proposed a new gathering to meet in Philadelphia. The clashes between the farmers and the militia alarmed Washington. Friends sent him an increasingly frenzied and often inaccurate stream of reports about Shays’ Rebellion and its implications. Properly rattled, Washington agreed to travel to Philadelphia for the new federal conclave, giving it the legitimacy it needed. It would become the Constitutional Convention.

  THE CONSTITUTIONAL CONVENTION: THE ARMY VERSUS THE PEOPLE

  One young man could not wait for the convention to begin: Virginian James Madison arrived early, ten days before any other out-of-town delegate.

  Slight, sickly, Madison made his way in life through study and ingratiation. He had traveled to attend college at Princeton, New Jersey, where he read deeply in the classics. He was a painful public speaker, tending to mumble, and was a bit of a hypochondriac. Madison never served in the military. But as a state legislator in Virginia, he made himself useful to Washington, and became a protégé, one of the great man’s succession of surrogate sons. He was far advanced in thinking about rights, and fought for religious freedom in Virginia. But he was alarmed by the collapse of governmental authority in the new country. Together with New York’s Alexander Hamilton, another young nationalist, he maneuvered to have the convention called, to drum up attendance, and to make sure it was seen as a major turning. And once it had been scheduled, he drove himself to study world political systems, trying to understand how republics rise or fall. Thomas Jefferson sent him two hundred books from Paris for the cram session. Even before arriving in Philadelphia, Madison had sketched out a new approach, one with a strong central government and power divided among three branches: legislative, executive, and judicial. (In a letter he confessed to Washington he had not thought much about the executive branch, except that the new government should dominate the militia.) Madison had come to believe that power checked power, and tha
t a muscular government could be consistent with liberty if structured properly. Above all, he felt it vital that national government “enlarge the sphere.” A government that spread across territory would be less likely to fall prey to faction. Congress, not the states, would reign. Only it could “control the centrifugal tendency of the states; which, without it, will continually fly out of their proper orbits,” he said at another point. It was a vision that could horrify older Americans who believed that virtue would be enough to prevent tyranny, if government were kept small.

  Madison and the other Virginians closeted themselves at the Indian Queen Tavern in Philadelphia, and put in writing a blueprint for a new national system that echoed Madison’s ideas. Introduced by the state’s governor, Edmund Randolph, it became known as the Virginia Plan, and it formed the basis for the new government of the United States of America.

  Delegates gathered in the same room on the ground floor of the Pennsylvania State House where independence had been declared: even then, symbolically powerful territory. Most newspapers worried they would not go far enough, given their charge merely to look at the Articles of Confederation and recommend changes. The convention voted to elect Washington as its president, and to deliberate in secret. The doors closed. Even windows were shut, to avoid eavesdropping, leading to stifling heat in an otherwise cool summer. Not until a new proposed constitution was released publicly four months later did word leak of the convention’s work.

  Washington sat impassively in the chair, facing the rows of delegates. Madison sat just below him, intently taking notes. Historians long have sifted motives behind the calling of the Constitutional Convention. Were the Framers patriots stopping the slide toward a failed state? Did the delegates wrest power in a creditors’ coup, seeking to protect their investments, as Progressive Era historians alleged? Regardless, as Madison scanned the high-ceilinged room, he could see that those who sought a strong national government were present in force. Young men who had served in the great cause dominated the gathering. Fully one third had served as officers in the Continental Army. In the eventual fight for ratification, many of the most influential backers of the Constitution were a decade younger than those who opposed it. Repeatedly, on issue after issue, a core of delegates led by Madison thrust toward the creation of a more powerful central government. Madison, though hardly alone, was among the most ardent. If he had had his way, the federal government would have had a veto over laws passed by the states. (Many who laud him as “Father of the Constitution” might strip him of the title if they knew what he actually favored.) Others struggled to balance their desire for order and national energy with older, deep distrust of centralized power.

  Through the summer of 1787, the delegates crafted a series of intricate compromises. Never before had a nation built its new political institutions entirely from scratch, sketching the structure in writing long before it took shape in reality. Repeatedly delegates picked at vexing questions about the nature of the new government: What power to levy taxes would it have? How to apportion representation? Small states insisted that they retain equality in the new government, as they had in the Articles of Confederation. Virginia would have abandoned equal standing among the states and replaced it with a system based on proportional representation according to population. (New Jersey’s rival plan would have retained the country as a league of sovereign states. It was defeated.) Midsummer, delegates brokered the Great Compromise, which created a House elected by the people and a Senate representing states. The thicket of questions were handed off to a deliciously named Committee of Detail, which worked for two weeks and offered a draft constitution. Delegates still referred to it as “the plan,” as if calling it something more would reveal the audacity of their work.

  As the delegates pored over the document, a particularly elaborate section addressed the question of the new nation’s armed forces. As ratified, the Constitution gives Congress the power:

  To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

  To provide and maintain a Navy;

  To make Rules for the Government and Regulation of the land and naval Forces;

  To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

  To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

  As we read the Constitution today, it is easy to skip over this oddly precise language. To the Framers, these paragraphs were exceedingly important. Some delegates sought to move decisively toward an army—paid, trained, professionalized. Others clung to the belief that state militias were more representative of the people, and provided a check on a possibly overweening central government. Most were torn: they yearned for an effective national force, yet felt protective of the state militias, and were eager to profess their continued fealty to the ideal.

  They envisioned a complex dual system. The country’s safety could still be trusted to the militias, rooted in the thirteen states, with their citizen soldiers and stashed-at-home weapons. But the president could command the militias when the Congress called them into federal service. Congress would set the rules for discipline and arming the militias, even though they were state government functions. And there could be, when necessary, an army. This was, in one degree, a radical shift from traditional republican theory: moving ultimate command of the militias from the states to a national government. A division of military authority among the president, the Congress, and the states would check danger.

  To the delegates, fear of a standing army was not abstract. The British Army had sailed away just five years before. That dread, and the earnest belief in militias as an alternative, permeated the records of the Constitutional Convention. When it spilled out into public debate, it led directly to the Second Amendment.

  Delegates tried to counter the possible abuse of federal power in several ways. For example, they limited funding for an army to no more than two years. This time limit was designed to prevent establishment of a permanent force, with an endless drain on the treasury. Constitutional scholar Akhil Reed Amar notes, “The particular two-year cutoff meshed perfectly with the gears of the Constitution’s electoral clock, which would bring the entire House membership before the American electorate every two years.” The Constitution imposes a similar funding curb on no other governmental function. Congress, too, has the power to declare war (not the president). Of note, the Constitution also tried to harness federalism as a check on centralized military power. If a president on horseback or a rampaging Congress were tempted to use a U.S. Army as an oppressive force, the state militias—made up of armed freemen—would stand in their way.

  But some delegates still found the role of the national military to be unchecked and unbalanced. This fear of a standing army, and reverence for the militias, flashed into one of the most intense debates late that summer, after the most significant issues of representation had already been resolved. The most passionate critic was Elbridge Gerry of Massachusetts. As he comes to us through history, he was excitable, at times a crank. Much constitutional history can be read, among other things, as an effort—at first polite, increasingly frustrated—to placate Gerry and fend off his interjections.

  Throughout the summer, Gerry assaulted the new Constitution’s military order, each fusillade noisier than the last. At one point he proposed that the Constitution prohibit a standing army larger than “two or three thousand” men. George Washington had sat immobile through nearly the entire summer. Reportedly he turned and in a stage whisper proposed the Constitution include a provision declaring “no foreign enemy should invade the United States at any time, with more than three thousand troops.” Perhaps jolted by the great man’s ra
re intervention, the delegates rejected Gerry’s motion. Gerry’s pithiest attack does not appear in Madison’s straight-faced notes, but comes to us through oral tradition. “A standing army is like a standing member,” he supposedly gibed. “An excellent assurance of domestic tranquility, but a dangerous temptation to foreign adventure.” Still, despite Gerry’s demands, the Constitution nowhere actually barred a standing peacetime army—a sign of how far its center had shifted from traditional republican ideas.

  The provisions governing militias proved even more contentious. Would states still run them, or would control shift to the federal government? Just a few years after a devastating war, months after Shays’ Rebellion, fears were raw. The committee draft gave Congress power to summon the militia to “subdue a rebellion in any state on the application of its legislature.” One delegate proposed letting the national government step in without state approval. Gerry held back little. “One senses the excitement in this slight, nervous man, the frown etched deeply, the hands stiff with tension,” writes Catherine Drinker Bowen in Miracle at Philadelphia. Borrowing an image from Homer’s Iliad, he warned of the risks of “letting loose the myrmidons of the United States on a state without its own consent. More blood would have been spilt in Massachusetts in the late insurrection [Shays’ Rebellion] if the General Government had intermeddled.” As Gerry fulminated—a performance that still leaps off the pages of Madison’s deadpan notes—New Yorker Gouverneur Morris replied calmly. “We first form a strong man to protect us, and at the same time wish to tie his hands behind him.” Eventually the requirement for state legislative approval was removed.

  Originally the August 6 draft gave Congress the power to “call forth the aid of the militia” but not to set its rules. Virginia delegate George Mason repeatedly urged that more power over the militia be given to the general government. “Thirteen states will never concur in any one system, if the disciplining of the militia is left in their hands.” Madison made clear he thought the national government had too little authority over the state military establishment. Others recoiled. John Dickinson of Pennsylvania proposed that no more than one quarter of the militia be under federal control at any one time. Connecticut’s Oliver Ellsworth defused the conflict with an aside. “The states will never submit to the same militia laws. Three or four shillings as a penalty will enforce obedience better in New England, than forty lashes in some other places.” (Jokes about skinflint Yankees and sadistic slave owners counted as ethnic humor in 1787.)