Part II
What Blackstone articulated in his treatises on the laws of England was put into practice in the colonial governments before the revolution. None of the colonies had standing armies or even standing militias but had the military defense their societies needed built into the social structures. Much as the original military defense of England was organized from the beginning of that nation, the American colonists also had mandatory service in the militia for all able-bodied male citizens for the same reason that William Blackstone surmised: free people are people who are the military in times of necessity. Standing armies only serve to restrict liberty and by their very existence not only endanger freedom but take away perhaps freedom’s most vital element.
This was also the understanding of the founding generation. Regardless of which side they were on, whether they stood for a strong central government or for a loose confederacy of states, the belief that standing armies were dangerous to liberty, and an armed citizenry the best alternative, were ubiquitous. Though there were some individuals, mostly those who favored a strong central government, who were in favor of congress having the power to maintain a standing army, the prevailing view was that which was in conformity to Blackstone: that standing armies are a danger to liberty.
That is not to say, however, that all those who favored a stronger central government were in favor of a standing army. Alexander Hamilton, who was a proponent of the president of the United states being a king, also thought that a strong centralized government would actually serve as a means of nullifying the need for a standing army because it would unite the states in such a way that war between them would not be legal or necessary. Writing in the Federalist Papers, Hamilton said:
“The violent destruction of life and property incident to war- the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security, to institutions, which have a tendency to destroy their civil and political rights. To be more safe they, at length, become willing to run the risk of being less free. The institutions alluded to are STANDING ARMIES, and the correspondent appendages of military establishments. Standing armies it is said are not provided against in the new constitution; and it is therefore inferred, that they may exist under it. Their existence however from the very terms of the proposition, is, at most, problematic and uncertain. But standing armies, it may be replied, must inevitably result from a dissolution of the confederacy.”[1]
Even those who favored a stronger centralized government like Hamilton believed that standing armies were things which by their very nature destroyed freedom and endangered liberty. Armies were seen as a thing which, if kept around outside of time of war and if raised without the absolute necessity of doing so, were liable to be used for whatever purpose those who are in power want or wanted. Those purposes, as the founders and framers knew were, if not for the direct purposes of defending liberty, working against it.
This view was also in total conformity to William Blackstone’s jurisprudence. Blackstone, who as previously noted was the foremost scholar on the English common law system at the time of the American revolution, stated that standing militaries were a foreign concept to a free Englishman. A standing army was therefore an infringement on the rights of Englishmen; the very rights over which the founders began the revolution to preserve in the first place. Incidentally, Blackstone’s work is still cited in legal arguments being made to this day and is seen as a source of contemporary legal interpretation for documents from the founding era, including the Constitution.
A standing army was not seen just as something to be suspicious of to the founders, it was a thing to be avoided to the point of absolute necessity. So much so was a standing army to be feared that even the appointment of officers to the militia, and the question of whether or not to make the militia a select corps of highly trained individuals or to include all military aged males was hotly debated during the constitutional convention of 1787.
According to James Madison’s notes taken on the constitutional convention, at one point during the debates concerning a standing army and the proper role of the states in appointing officers, Elbridge Gerry quipped at the idea of reserving the military power to the central government:
“Let us at once destroy the State Governments, have an Executive for life or hereditary and a proper Senate; and then there would be some consistency in giving full powers to the General Government: but as the States, are not to be abolished he wondered at the attempts that were made to give powers inconsistent with their existence. He warned the Convention against pushing the experiment too far. Some people will support a plan of vigorous government at every risk. Others, of a more democratic cast, will oppose it with equal determination; and a civil war may be produced by the conflict.”
To which Madison replied: “As the greatest danger is that of disunion of the States, it is necessary to guard against it by sufficient powers to the common government; and 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.”[2]
A similar sentiment was echoed by Richard Henry Lee, one of the most influential members of the founding generation and a leading advocate for American independence from England during the early days of the revolution. Lee stated:
“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 . . . It is true, the yeomenry of the country possess the lands, the weight of property, possess arms, and are too strong a body of men to be openly offended (but) they may in twenty or thirty years be, by means imperceptible to them, totally deprived of that boasted weight and strength. This may be done in great measure by Congress, if disposed to do it, by modeling the militia. Should one-fifth or one-eighth part of the men capable of bearing arms be made into a select militia, as has been proposed . . . and all the others put upon a plan which will render them of no importance, the former will answer all the purposes of an army, while the latter will be defenseless . . . The constitution ought to secure a genuine, and guard against a select, militia, by providing that the militia shall always be kept well organized, armed and disciplined, and include, according to the past and general usage of the States, all men capable of bearing arms; and that all regulations tending to render this militia useless and defenseless, by establishing select corps of militia, or distinct bodies of military men not having any permanent interest and attachments in the community, to be avoided . . .”[3]
Most of the sentiments outlined above deal with the militia and standing armies from the premise that it would be a good thing for the federal government to have control over the raising of armies and the authority to call out the militia at all. There were, however, some who believed that that amount of power in the hands of the central government would be a sure recipe for tyranny. When the proposed constitution made its way out of convention in Philadelphia, many of the state conventions called to vote on ratification of the document were concerned with the proposed federated government having any authority over the militia at all; to say nothing of the power to maintain an army.
The Pennsylvania ratifying convention, which was the first state to vote for ratification on December 12, 1787, set the tone of the debate over the federal power to raise armies and to have control over the militia. The faction of the convention which was in favor of a greatly limited amount of power being vested in the centralized government, known to history as the anti-federalists, stated in their arguments against the proposed constitution:
“The framers of this constitution appear to have been aware of this great deficiency; for to be sensible that no dependence could be placed on the people for their support; but on the contrary, that the government must be executed by force. They have therefore made provision for this purpose in a permanent STANDING ARMY, and a MILITIA that may be subjected to as strict discipline and government (meaning they may be called out for any reason at all and subjected to the standards of military discipline).
A standing army in the hands of a government placed so independent of the people, may be made a fatal instrument to overturn the public liberties; it may be employed to enforce the collection of the most oppressive taxes, and to carry into execution the most arbitrary measures. An ambitious man who may have the army at his devotion, may step up into the throne, and seize upon absolute power.
The absolute unqualified command that Congress have over the militia may be made instrumental to the destruction of all liberty, both public and private; whether of a personal, civil, or religious nature.”[4]
The Pennsylvania convention did not draw its opposition to the proposed constitution without good reason. Though on face value it may seem that their opposition was immature and short sighted, they finished their address by stating what would happen to a government that was granted the unlimited authority to maintain a permanent army and control the militia, stating:
“Thirdly the absolute command of Congress over the militia may be destructive of the public liberty; for under the guidance of an arbitrary government, they may be made the unwilling instruments of tyranny. The militia of Pennsylvania may be marched to New England or Virginia to quell an insurrection occasioned by the most galling oppression, and aided by the standing army, they will no doubt be successful in subduing their liberty and independence . . .”[5]
In other words, the right of the people to govern themselves comes from their ability to not fear the crushing blows of a military waiting in the wings of a potentially despotic governmental regime. It apparently was in the minds of the founding generation that the government of Great Britain, which they had just thrown off, might be made manifest again under the auspices of an American government, and that just as it was the right of the Founders to throw off the yoke of British oppression, so too was it the right of every American to throw off the yoke of any oppressive government, either foreign or domestic. They feared that if the government, through a long train of abuses and usurpations, became destructive of the ends of life, liberty, and the pursuit of happiness, it was the right of the people to determine their own future and to provide new government for their future security and happiness. The institution of a standing military, in their eyes, was destructive to the very idea of liberty.
The anti-federalist members of the Pennsylvania convention finished their address with a prophetic foresight concerning what would happen if an army were maintained in times of peace, saying:
“As this government will not enjoy the confidence of the people, but be executed by force, it will be a very expensive and burdensome government. The standing army must be numerous, and as a further support, it will be the policy of this government to multiply officers in every department; judges, tax gatherers, excise men, and the whole host of revenue officers will swarm the land, devouring the hard earnings of the industrious.”[6]
One need only think of the massive military maintained by the government today and look at all the federal debt collection agencies and feel the burden of the current level of taxation to see that they were right. Further, they foresaw the destruction of liberty which has been wrought by the supposed constant need for a standing military, and the thumb-breaking, liberty-constraining force exerted on the people of the United states by the sheer size and scale of the federal government today to realize that they were right.
The records of every state ratifying convention are full of similar sentiments. Many of the states chose not to ratify until they could extract a promise from the framers of the Constitution that a bill of rights would be affixed at a later date that would guarantee that their concerns would be remedied. Their concerns were not whether they, that is, the people of the states in which the proposed constitution was being debated, would be better off united in a confederacy with the other states. The need for a better system of defense and trade between the states was obvious from their recent experiences under the Articles of Confederation, and that need mandated by necessity that the states at least consider a new constitution amongst them. Rather, their concern was whether or not the government, whose stated purpose in the preamble of the Constitution was to provide for the “common defense,” would turn that delegated authority of defense (which incidentally is necessary only when under attack) against the states for the purposes of prosecuting an unconstitutional style of government. The states aggregate demand of a bill of rights was designed to provide just such a guarantee against the potential usurpation of power by a newly constituted federal government.
Part III will deal with the militia as codified within the second amendment to the Constitution and under current federal law.
[1] The Essential Federalist and Anti-Federalist Papers, edited by David Wootton. The Federalist, No. 8,(Indianapolis: Hackett Publishing Company, Inc., 2003), 159.
[2] Journal of the Federal Convention Kept by James Madison., edited by E.H. Scott, (Clark, NJ: Lawbook Exchange, Ltd., 2013), 592.
[3] Hardy, David T. Origins and Development of the Second Amendment. (Southport, CT: Publishers Blacksmith Corporation, 1986), 66.
[4] The Essential Federalist and Anti-Federalist Papers, edited by David Wootton. Address of the Minority of the Pennsylvania Convention,(Indianapolis: Hackett Publishing Company, Inc., 2003), 23.
[5] Ibid
[6] Ibid
In Defense of Man 