The Militia the Founders Envisioned, and What Remains Today

“Who are the militia? They consist now of the whole people.” 

George Mason cut to the heart of it: the militia was not a government creation, but the people themselves.

That simple truth has been twisted, ignored, or totally forgotten.

Say the word “militia” today and most people look at you like you’re a fringe nutcase. But the founding generation saw it differently. They viewed a well-armed and well-trained people as the backbone of liberty, the essential security of a free republic.

The Constitution’s militia clauses were supposed to secure that principle. The Anti-Federalists warned they would do the opposite – and time has proven them right.

CITIZEN MILITIA VS. STANDING ARMY

This story really begins with a principle most Americans have forgotten, and most were never even taught: the choice between a citizen militia and a permanent professional standing army.

Henry Knox, Washington’s Secretary of War, reinforced the same principle: in a free society, the ultimate safeguard had to be an armed people, themselves.

“An energetic national militia is to be regarded as the Capital security of a free republic; and not a standing army, forming a distinct class in the community.”

That view was widespread because almost the entire founding generation viewed standing armies, especially large permanent ones, as one of the greatest dangers to liberty. A perfect example of this view came from the great revolutionary war hero Joseph Warren.

“It is further certain, from a consideration of the nature of mankind, as well as from constant experience, that standing armies always endanger the liberty of the subject.”

The same warning carried forward to the ratification debates over the Constitution. “A Democratic Federalist,” possibly Samuel Bryan, pointed to the long record of history. From every angle, the conclusion was the same: a standing army was the single greatest danger.

“The experience of past ages, and the result of the enquiries of the best and most celebrated patriots have taught us to dread a standing army above all earthly evils,”

And Tench Coxe drove the distinction home. A militia of the people worked for the people, defending their own freedom. A professional army was nothing but the tool of those in power. And people in power always find ways to use that power for the worst.

“There is a wide difference between the troops of such a commonwealth as ours, founded on equal and unalterable principles, and those of a regal government, where ambition and oppression are the profession of the king. In the first case, a military officer is the occasional servant of the people, employed for their defence; in the second, he is the ever ready instrument to execute the schemes of conquest or oppression, with which the mind of his royal master may be disturbed.”

MILITIA IN THE CONSTITUTION

James Madison tied the whole question of liberty to the militia itself. What others had warned about in theory, he pressed as a principle to be written into the Constitution itself.

“As the greatest danger to liberty is from large standing armies, it is best to prevent them, by an effectual provision for a good Militia.”

Tench Coxe tied those principles together into one clear doctrine. The militia was the people themselves, and he affirmed Madison’s view that they made a standing army unnecessary.

“The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary.”

He explained why. An armed population, by sheer numbers, could act as a check on regular troops, because the geographic situation of the country meant there would seldom be many of them in the first place.

“They will form a powerful check upon the regular troops, and will generally be sufficient to overawe them – for our detached situation will seldom give occasion to raise an army, though a few scattered companies may often be necessary.”

The Constitution wrote the principle into law, repeating the word “militia” six times.

Article II, Section 2 made the president commander in chief not only of the army and navy, but also of the militia of the several states when called into the actual service of the United States.

Article I, Section 8, Clause 15 explained when that could happen. Congress could provide for calling forth the militia only in three situations: “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Clause 16 delegated to Congress the power 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.”

That last power would become the heart of the coming debate.

The Bill of Rights added two more mentions of the word militia. The Fifth Amendment exempted cases “arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.”

The Second Amendment put the principle beyond dispute, tying the people’s right to arms directly to the survival of a free state.

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

THE BIG DEBATE

During the ratification debates, there was strong opposition to giving Congress power to organize, arm, and discipline the militia. As Federal Farmer wrote, the starting point was clear: liberty required the great mass of the people themselves to remain armed.

“To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them”

Patrick Henry pressed the point even harder. Liberty could not be secured by a portion of the people.

“The great object is, that every man be armed”

That demand ran headlong into Alexander Hamilton’s approach. He began by acknowledging the opposition’s concern that federal power over the militia could be used to form a select corps, loyal to government instead of the people.

“By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power.”

Hamilton then made his own claim. A general militia, he said, was not the safeguard of liberty but an impractical and dangerous burden.

“The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution.”

In one stroke he dismissed the idea that ordinary citizens should give their time and effort to arms and training, calling such effort a nuisance to be avoided.

“To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.”

THE SELECT MILITIA

The Anti-Federalists repeatedly warned that any plan allowing a “select corps,” or what they called a “select militia,” could be extremely dangerous. In Pennsylvania, John Smilie warned that this would, in practice, be a standing army.

“Congress may give us a select militia which will, in fact, be a standing army”

And if men hostile to liberty gained power, they would have every reason to cripple the one institution that could resist them. That meant abolishing the general militia altogether.

“Or – Congress, afraid of a general militia, may say there shall be no militia at all.”

Either way, the stage would be set for the ultimate danger.

“When a select militia is formed; the people in general may be disarmed.”

George Mason explained how easily this could happen. Congress would not need to seize weapons outright. It could let the militia wither through neglect.

“The militia may be here destroyed by that method which has been practised in other parts of the world before. That is, by rendering them useless, by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia, and the State Governments cannot do it, for Congress has an exclusive right to arm them”

But Mason saw something even more sinister -what if this wasn’t accidental neglect, but the whole point?

“Should the national Government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing standing army”

Even Hamilton conceded that the scope of power was wide open. No one could predict what Congress might choose to do.

“What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen”

Mason brought the issue back to first principles. In 1788, there was no ambiguity –  the militia still meant the people themselves – all of them.

“I ask who are the militia? They consist now of the whole people, except a few public officers.”

Mason drove it home with a warning that would prove to be prophetic. To grant Congress control over organizing, arming, and disciplining the militia was to guarantee a select militia – and with it, every danger the Anti-Federalists had warned against.

“But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected.”

THE PUSH FOR AMENDMENTS

This fear of Congress neglecting the militia, or even disarming the people and leaving only a select corps, was a driving force behind the push for amendments.

At Virginia’s ratifying convention, they proposed one in unmistakable terms:

“That the people have a 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.”

New York, North Carolina, and Rhode Island all ratified with nearly the same recommended amendment.

Years later, Thomas Jefferson recalled just how urgent the issue had been. From Europe, he pressed James Madison for amendments to guarantee that the Constitution itself would help prevent that great threat to liberty – a standing army – by securing the militia.

“I wrote strongly to mr Madison urging the want of provision for the freedom of religion, freedom of the press, trial by jury, habeas corpus, the substitution of militia for a standing army, and an express reservation to the states of all rights not specifically granted to the union.”

THE WARNING CAME TRUE

Remember George Mason’s warning about Congress turning the militia into a narrow class, while exempting those with the greatest means? A century later, that prediction became law.

The Militia Act of 1903, what most people today call the Dick Act, narrowed the definition of the militia from “the whole people” to a specific segment of the people.

“The militia shall consist of every able-bodied male citizen of the respective States, Territories, and the District of Columbia, and every able-bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age”

From there the Act went even further, creating the very “select militia” Mason and the Anti-Federalists had warned would destroy liberty.

“And shall be divided into two classes, the organized militia, to be known as the National Guard of the State, Territory, or District of Columbia … and the remainder to be known as the Reserve Militia.”

And then, of course – to ensure it’s just like the standing army we were warned about, Congress ensured that politicians were completely exempt.

“That the Vice-President of the United States, the officers, judicial and executive, of the Government of the United States, the members and officers of each House of Congress … shall be exempted from militia duty, without regard to age”

THE ONE-TWO PUNCH

The militia was, and always will be, the people themselves.

But just as the Anti-Federalists warned, once Congress was given the power to organize, arm, and discipline only part of the militia, the results were inevitable.

Today we live with the one-two punch they predicted:

1. A select militia – the National Guard – is treated as nothing more than an arm of the permanent standing army.
2. Tens of millions of Americans are not armed today.

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