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IT REALLY WAS ABOUT
A WELL REGULATED MILITIA
Paul Finkelmant
CONTENTS
IN TRO DUCTION ..........................................................................................
I.
FEAR OF GOVERNMENT,
THE ANTIFEDERALISTS,
AND
II.
267
A MEN DMEN TS .................................................................................
269
THE AMENDMENTS AND THE SECOND AMENDMENT ..................... 274
INTRODUCTION
1
Justice Scalia's majority opinion in District of Columbia v. Heller
rests on his understanding of history, and his parsing of the words of the
Second Amendment. He argues that the Second Amendment is not about
militias-despite the opening words of the Amendment-but rather, he
asserts, it guarantees an individual right to carry weapons. 2 He rests much
of his case on an analytical argument of the language of the Amendment
that is at best confused, and on an historical argument that is limited and
wrongheaded.
The Second Amendment is unique in the Bill of Rights, in that it
contains a stated purpose for its inclusion: "[a] well regulated Militia, being
necessary to the security of a free State[.],, 3 No other Amendment contains
such a provision. Justice Scalia rejects the idea that this clause of the
Amendment is explanatory and ultimately claims that it has no relationship
to the meaning of the Amendment. Rather oddly Justice Scalia asserts that
the "well regulated Militia" clause was inserted to simply offer one
example of what the right to keep and bear arms is for. 4 Justice Scalia,
although famous for his interest in history and his probing mind, never
bothers to ask "why" this Amendment, and no other, offers such an
f President William McKinley Distinguished Professor of Law and Public Policy,
Albany Law School. Final work on this article was completed while I was a visiting scholar
at the Graduate School of Law and Politics at Osaka University. I thank the Osaka
University and Professor Yutaka Takenaka, Mr. Hiro Watanabe, and Ms. Takako Sakai for
their hospitality.
1. 128 S. Ct. 2783 (2008).
2. See Heller, 128 S. Ct. at 2822.
3. U.S. CONST. amend. II.
4. Heller, 128 S. Ct. at 2791-94.
Syracuse Law Review
[Vol. 59:267
"example" of how the Amendment might be used.
We can imagine that other Amendments might have had such a
provision. The First Amendment, for example, could have asserted
something like this: "open discourse being necessary for the voters to
understand political issues, Congress shall make no law prohibiting
freedom of speech or of the press."
Or, paralleling the Second
Amendment, the First Amendment might have been phrased in this way:
"well regulated speech, being necessary to the security of a republican form
of Government, the right of the people to freedom of speech, press,
petition, and assembly, shall not be infringed." The first Congress clearly
did not choose to narrow the scope the First Amendment in this way, and
this surely informs how we should understand the narrowness of the
Second Amendment. Similarly, the Fifth Amendment might have said "the
security of private property being necessary for a free society of
independent citizens, the government shall not take private property
without due process and just compensation." The Sixth and Seventh
Amendments might have mentioned the value of a jury trial for a free,
democratic state. But, in none of these did the framers feel the necessity of
explaining why the Amendment is necessary.
Logically, if only one amendment has an explanatory clause, we
should assume that the First Congress put it there to make sure that
everyone understood why that particular Amendment was being sent to the
states for ratification. Surely if the First Congress wanted to protect an
individual right to bear arms, it would not have cluttered up the
Amendment with a discussion of the militia. Nor would the Framers of the
Amendment have added the term "well regulated" to the Amendment. On
the other hand, if the Congress intended to protect the right of the states to
maintain a militia, but also ensure that Congress retained the power to have
that Militia "well regulated," then the clause not only makes sense, but is
central to the meaning of the Amendment.
To put it another way, if we accept Justice Scalia's interpretation of
the clause, we have to assume that the First Congress put the well regulated
militia provision in the Amendment for no good purpose at all. The clause
is absolutely unnecessary for Justice Scalia's individual rights analysis.
Furthermore, it makes that analysis more difficult because the supporters of
an individual rights interpretation of the Amendment must come to terms
with the fact the Framers of the Amendment explicitly provided for the
regulation of the ownership of weapons by Congress, asserting that only a
"well regulated Militia" is protected by the Amendment. Why would the
First Congress have added the first clause if it had no meaning and only
clouded the interpretation and application of the Amendment? The answer
It Really Was About a Well Regulated Militia
2008]
269
is obvious: the First Congress did not intend to protect an individual right
to own weapons, but only intended to protect the right of the states to
maintain their militias, subject to federal oversight. Thus the Amendment
begins by clearly stating its purpose: to provide for a "well regulated
Militia."
So, why did the First Congress put explanatory language to the
Second Amendment? The most logical answer is that the Congress wanted
everyone to know exactly why it was adding the Amendment. To
understand this, we need to look at the context of the adoption of the Bill of
Rights and further understand who supported-and who opposed-the Bill
of Rights.
I. FEAR OF GOVERNMENT, THE ANTIFEDERALISTS, AND AMENDMENTS
Opponents of the Constitution, collectively known as antifederalists,
came from a variety of backgrounds and held a variety of often conflicting
views. Some, like Patrick Henry of Virginia and George Clinton of New
York, despised the new Constitution and the entire idea of a stronger
national government. These critics used any argument they could findoften ones that were mutually exclusive-to oppose the Constitution. At
the Virginia ratifying Convention, for example, Patrick Henry complained
that the Constitution threatened slavery while at the same time he also
complained that it did not allow the government to ban the African slave
trade. 5 Some antifederalists complained that there was no religious test for
holding office, which meant that, in the quaint phrasing of the times, "Jews,
Turks, and other Infidels" might be elected to public office. 6 However,
that the Constitution did not adequately
other antifederalists complained
7
protect religious freedom.
The antifederalist complaints can be divided into two categories:
Those who feared a stronger national
structural and libertarian.
government, like Henry and Clinton, wanted major structural changes in
the Constitution that would have vastly diminished the powers of the new
government.
The Virginia ratifying Convention proposed forty
amendments to the Constitution and half of them were designed to reduce
the power of the national government. 8 The other half were designed to
5.
3 ELLIOT'S DEBATES: THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE
ADOPTION OF THE FEDERAL CONSTITUTION 590 (Jonathan Elliot, 2d ed. 1941) (1836).
6. See MORTON BORDEN, JEWS, TURKS AND INFIDELS 3-4, 15-16 (1984).
7. See L.H. Butterfield, Elder John Leland, Jeffersonian Itinerant, in 62 PROC. OF THE
AM. ANTIQUARIAN SOC'Y 183-96 (1953).
8. 3 ELLIOT'S DEBATES, supra note 5, at
657-661.
Syracuse Law Review
[Vol. 59:267
protect civil liberties. 9 Similar proposals to undermine the power of the
national government can be found in the various amendments endorsed by
state conventions or those proposed by antifederalists outside of a
convention.
The supporters of the Constitution (the federalists) opposed any
amendments to the document because they considered the call for
amendments to be a politically dishonest ruse by people like Patrick Henry
to scuttle the new Constitution altogether. This was in part because the
federalists held the opponents of the Constitution in utter contempt.
General Henry Knox believed that antifederalists were "[d]emagogues and
vicious characters."' 10
In New England, federalists described their
'
ignorant, and short-sighted triflers." I
"malignant,
"wicked,"
opponents as
A federalist in North Carolina referred to his opponents as a "blind stupid
set, that wish Damnation to their Country," who were "fools and knaves"
opposed to "any man of abilities and virtue." 12 A New Hampshire
federalist believed that only 'fools, blockheads, and mad men" opposed the
Constitution. 13 In New York, the anonymous "Caesar" thought that the
demands for a bill of rights were made by "designing croakers" in order "to
frighten the people with ideal bugbears."' 14 Madison described the
15
Massachusetts antifederalists as including "scarce a man of respectability."'
They were a combination of supporters of Shays' Rebellion and "ignorant
and jealous men, who had been taught or had fancied that the Convention at
Philada. had entered into a conspiracy against the liberties of the people at
large, in order to erect an aristocracy for the rich the well-born, and the men
of Education." 16 On the other hand, "all the men of abilities, of property, and
9. Id.; see also
CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE
FIRST FEDERAL CONGRESS 17-19 (Helen E. Veit et al. eds., 1991).
10. ROBERT
ALLEN
RUTLAND,
THE
ORDEAL
OF
THE
CONSTITUTION:
THE
ANTIFEDERALISTS AND THE RATIFICATION STRUGGLE OF 1787-1788 34 (University of
Oklahoma Press 1966).
11. Id. at 34, 73.
12. Id. at 268-69 (citation omitted).
13. Id. at 216 (emphasis in original).
14. See Alexander Hamilton, THE LETTERS OF CAESAR (1787), reprinted in ESSAYS ON
THE CONSTITUTION OF THE UNITED STATES 289 (Paul Leicester Ford ed., Historical Printing
Club 1892); see also Caesar No. 1,reprinted in 4 THE PAPERS OF ALEXANDER HAMILTON
278-79 (Harold C. Syrett & Jacob E. Cooke eds., Columbia University Press 1962) (Ford
incorrectly identifies the author of this letter as Alexander Hamilton); see generally
RUTLAND, supra note 10.
15. Letter from James Madison to Edmund Pendleton (Feb. 21, 1788), in 10 THE
PAPERS OF JAMES MADISON 533 (Robert A. Rutland et al. eds., University of Chicago Press
1977).
16. Letter from James Madison to Thomas Jefferson (Feb. 19, 1788), in 10 THE PAPERS
OF JAMES MADISON, supra note 15, at 519.
2008]
It Really Was About a Well Regulated Militia
271
17
of influence" supported the Constitution.
Many modem scholars, as well as a number of Supreme Court
Justices, misunderstand the antifederalists. They see them as heroic
democrats, fighting against the less democratic federalists.' 8 They are
praised for demanding a bill of rights and are often seen, quite incorrectly,
as the authors and creators of that document. It is true that during the
struggle to ratify the Constitution many antifederalists demanded a bill of
rights, but this was mostly a ploy to defeat the entire Constitution.
However, in addition to proposed amendments to protect individual liberty,
the antifederalists offered up laundry lists of substantive changes they
wanted to make to the Constitution that would have undermined the new
government. 19 As I have just noted, half of the forty proposed amendments
offered by the Virginia antifederalists had nothing to with individual
liberty. The antifederalists were in fact, mostly men of "little faith," who
feared a strong national government, were local rather than national in their
orientation, and lacked any sense of vision. 20 Significantly, they are also
among the greatest losers in American history. They vigorously fought to
defeat the Constitution, and they failed miserably. Furthermore, when the
First Congress met, it ignored virtually all of the antifederalists' structural
arguments against the Constitution 2 and
only accepted some of their
1
proposals to protect individual liberty.
Despite the fascination with antifederalists, and the misplaced belief
that they were the only supporters of civil liberties during this period, the
federalists were not hostile to individual liberties. Madison, for example,
17. Id.
18. See generally SAUL CORNELL, THE OTHER FOUNDERS: ANTI-FEDERALISM AND THE
DISSENTING TRADITION IN AMERICA, 1788-1828 (1999); Paul Finkelman, Turning Losers
into Winners: What Can We Learn, If Anything, From the Antifederalists?, 79 TEX. L. REV.
849 (2001) (reviewing SAUL CORNELL, THE OTHER FOUNDERS: ANTI-FEDERALISM AND THE
DISSENTING TRADITION IN AMERICA, 1788-1828 (1999)).
For a critique of this
understanding of the antifederalists, see generally Paul Finkelman, Antifederalists: The
Loyal Opposition and the American Constitution, 70 CORNELL L. REV. 182 (1984)
(reviewing HERBERT J. STORING, THE COMPLETE ANTI-FEDERALIST (1981)), where many
years ago, I admit, I was somewhat more sympathetic to the antifederalists.
19. See supra footnotes 8-9 and accompanying text.
20. See generally Cecilia Kenyon, Men of Little Faith: The Anti-Federalists on the
Nature ofRepresentative Government, 12 WM. & MARY Q. 3 (1955).
21. The First Congress proposed twelve amendments. The first two amendments,
which failed, dealt with limiting the size of Congress and preventing any sitting Congress
from raising its own salary. Over the course of more than two hundred years, various state
legislatures ratified the latter of these two proposed amendments, usually to protest some act
of Congress. In 1992, the Secretary of State declared that three-fourths of the states had
now ratified the proposed change and certified that it had now been ratified as the 27th
Amendment.
Syracuse Law Review
[Vol. 59:267
was the leading (and most successful) proponent of Virginia's law
establishing religious freedom in that state. 22 But Madison, like most
federalists, honestly believed that no new amendments, including a bill of
rights, were necessary to preserve liberty. Madison, Hamilton, and other
federalists believed that a bill of
rights was unnecessary, useless, and even
23
dangerous to individual liberty.
Because the Constitution created a government of limited powers, the
federalists insisted that a bill of rights was unnecessary. Thus, Alexander
Hamilton argued in Federalist 84, "why declare that things shall not be
done which there is no power to do? Why for instance, should it be said
that the liberty of the press shall not be restrained, when no power is given
by which restrictions may be imposed?, 2 4 Although he was a fervent
supporter of individual liberties, Madison was deeply skeptical that a bill of
rights-what he called a "parchment barrier"- could ever actually protect
fundamental liberties. 25 He knew all too well that the Virginia Declaration
of Rights, and similar provisions in other state constitutions, had done little
to restrain popularly elected legislatures from trampling on the rights of
religious minorities and supporters of unpopular political causes. In
Federalist 48 he returned to the theory, although by implication, that bills
of rights were useless. Here he noted that in Pennsylvania "[t]he
constitutional trial by jury had been violated, and powers assumed which
had not been delegated by the constitution." 26 Thus Madison reiterated his
belief in the danger and futility of relying on "parchment barriers against
the encroaching spirit of power." 27 Madison, as well as other federalists,
also believed that a bill of rights could be dangerous to fundamental
liberties because any rights not specifically protected might be lost
forever. 2 8 This was based on the legal theory that any rights not
22. See generally Letter from James Madison to the Honorable General Assembly of
the Commonwealth of Virginia A Memorial and Remonstrance, (June 20, 1785), in 8 THE
PAPERS OF JAMES MADISON 295-304 (Robert A. Rutland & William M. E. Rachal eds.,
University of Chicago Press (1973)); see also An Act for Establishing Religious Freedom,
reprinted in 12 STATUTES AT LARGE OF THE LAWS OF VIRGINIA 84-86 (William Waller
Hening ed., 1823).
23. See generally Paul Finkelman, James Madison and the Bill of Rights: A Reluctant
Paternity, 1990 SuP. CT. REV. 301 (1991).
24. THE FEDERALIST No. 84 (Alexander Hamilton).
25. THE FEDERALIST No. 48 (James Madison).
Madison would use the term
"parchment barriers" somewhat later in a direct reference to the Bill of Rights. Letter from
James Madison to Thomas Jefferson (Oct. 17, 1788), in 11 THE PAPERS OF JAMES MADISON
297-99 (Robert A. Rutland & Charles F. Hobson eds., 1977).
26. THE FEDERALIST No. 48 (James Madison).
27. Id.
28. See, e.g., James Wilson in the Pennsylvania Convention, in 3 THE RECORDS OF THE
FEDERAL CONVENTION OF 1787 144 (Max Farrand ed., 1937) (1911).
2008]
It Really Was About a Well Regulated Militia
273
enumerated in a bill of rights would have been given up. This argument
assumed it would be impossible to make a complete enumeration of all
rights. Thus, in the Pennsylvania ratifying convention, James Wilson asked
who would "be bold enough to undertake to enumerate all the rights of the
people? ' 29 He thought no one could, but warned that "if the enumeration is
not complete, everything not expressly mentioned will be presumed to be
purposely omitted.",30 He asserted that members of the Convention
31
considered a bill of rights "not only unnecessary, but improper."
Alexander Hamilton made a similar point in Federalist84, arguing that a
bill of rights was "not only unnecessary in the proposed [C]onstitution, but
would even be dangerous. They would contain various exceptions to
powers not granted; and, on this very account, would afford a colorable
pretext to claim more than were granted. 3 2 Madison agreed with this
analysis. He told Jefferson if a bill of rights was added to the Constitution
as not to imply powers not meant to be included in
it had to "be so framed
33
the enumeration."
In sum, throughout the ratification debates Madison and virtually all
other federalists rejected the idea that the Constitution needed any
amendments, including a bill of rights. In a number of Conventions,
including Massachusetts, Virginia, and New York, the victorious federalists
allowed their opponents to propose "suggested" amendments. 34 But, no
Convention accepted the anti-federalist demand for either prior
amendments or conditional ratification. Thus, when the Constitution was
ratified in the summer of 1788, it was accepted as it had been written,
without any preconditions. It is important to understand that the state
ratifying Conventions that recommended amendments were (with the
exception of New York) dominated by federalist majorities that did not
have to support any amendments. 35 The suggested amendments coming
29. Id.
30. Id.
31. Id. at 161-62.
32. THE FEDERALIST No. 84 (Alexander Hamilton).
33. Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 11 THE PAPERS
OF JAMES MADISON 297 (Robert A. Rutland & Charles F. Hobson eds., 1977).
34. See CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST
FEDERAL CONGRESS, supra note 9, at 14-15, 17-28.
35. New York elected an antifederalist majority to its convention. See LINDA GRANT
ix
(1966). But, in the middle of the convention the delegates received news that both New
Hampshire and Virginia had ratified the Constitution, giving the new document one more
state than it needed to go into effect. Id. at 206-11. At this point the Constitution had been
ratified by the three states with the largest populations in the new nation-Virginia,
Pennsylvania, and Massachusetts. See id. at 84, 206-11, 276. Thus the antifederalists in
DE PAUW, THE ELEVENTH PILLAR: NEW YORK STATE AND THE FEDERAL CONSTITUTION, at
Syracuse Law Review
[Vol. 59:267
out of the conventions were sops thrown to devastated losers. They had no
legal meaning and little political meaning.
After ratification, Madison campaigned for Congress in western
Virginia. During this campaign he agreed to support amendments that
would not alter the fundamental nature of the Constitution. 36 He did not
actually believe that such amendments were necessary to protect liberty,
but he did find that some of his constituents, particularly the Baptists who
had been a persecuted minority in Virginia, honestly feared that the central
government would undermine their liberty. 3 7 Thus in the First Congress
Madison introduced a series of amendments that would answer some of the
complaints of the more moderate antifederalists without undermining the
power of the national government or altering the structure of the new
government. He did not think these amendments were particularly
necessary and he did not propose them with much passion. On the
contrary, he declared he had "never considered" any of his amendments "so
essential to the federal constitution" that their absence should have
prevented ratification. 38 But, with the Constitution ratified, Madison was
willing to concede "that in a certain form, and to a certain39extent" a few
amendments were "neither improper nor altogether useless."
II.
THE AMENDMENTS AND THE SECOND AMENDMENT
In proposing changes to the Constitution, Madison carefully chose
from the 200 or so suggested amendments that came out of the ratification
debates.4 0 In doing so he carefully avoided most of the structural changes,
such as the demand by the Virginia antifederalists to require a two-thirds
vote of Congress to maintain a peacetime standing army, 4 1 the New
Yorkers' demand for a two-thirds vote in Congress to declare war,4 2 or the
demand from the minority of the Pennsylvania ratifying convention to
prohibit standing armies. 4 3 Madison was careful to propose Amendments
New York realized that the Constitution would go into operation, and swallowing their pride
and reversing their political course, a number of antifederalists decided to support the
Constitution. See id. at 276-77. Having ratified the Constitution, these New York
antifederalists then passed a series of recommended amendments. Id.
36. See Finkelman, supra note 23, at 303.
37. 1 ANNALS OF CONG. 448-49 (1789).
38. Id. at 453.
39. Id.; see also Finkelman, supra note 23, at 341.
40. See Kenneth R. Bowling, "A Tub to the Whale": The Founding Fathers and
Adoption of the FederalBill of Rights, 8 J. EARLY REPUBLIC 223, 228 (1988).
41. See CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST
FEDERAL CONGRESS, supra note 9, at 20.
42. See id.at 26.
43. See Paul Finkelman, "A Well Regulated Militia ": The Second Amendment in
2008]
It Really Was About a Well Regulated Militia
275
that would "be satisfactory to a majority of those who have opposed the
Constitution" but were "limited to points which are important in the eyes of
many and can be objectionable in those of none." 44 Most importantly,
under his proposed Amendments he noted that "the structure & stamina of
the Govt. are as little touched as possible." 45 At the same time, however,
Madison vigorously sought to protect minority rights that might have been
threatened by the national government. Thus, freedom of speech, press,
and religion gained protection. So too did the rights of the accused.
This background helps us understand the Second Amendment and the
Third Amendment. Both dealt with restrictions on how the national
government could regulate the military. In both cases the First Congress
accepted a reasonable limitation on national power. Troops could not be
quartered in private homes without the consent of the owner during
peacetime or without the democratic process (through an act of Congress)
authorizing this in a time of war.4 6 Significantly, during a war Congress
was not precluded from quartering troops in private homes, but could only
do so through a democratic process. 47 This was similar to the takings
clause of the Fifth Amendment, which protected private property but did
it when necessary, but only with
not prevent the government from taking
48
due process and just compensation.
What became the Second Amendment was equally mild and
reassuring, while at the same time leaving significant power in the hands of
Congress. Antifederalists proposed numerous amendments touching on
weapons and the military. 49 Some, like those from Virginia, New York,
and Pennsylvania were designed to eviscerate federal power by limiting or
abolishing a standing army. 50 Madison ignored5 1these proposals because
they would have hamstrung the new government.
Illustrative of the antifederalist fears of the military were the proposals
of the minority of the Pennsylvania convention. These antifederalists had
been overwhelmingly defeated in the Pennsylvania ratifying conventionHistoricalPerspective, 76 CHI.-KENT L. REv. 195, 207 (2000).
44. Letter from James Madison to Thomas Jefferson (June 13, 1789), in 12 THE
PAPERS OF JAMES MADISON 218 (Robert A. Rutland et al. eds., University of Chicago Press
1977).
45. Letter from James Madison to Edmund Randolph (June 15, 1789), in 12 THE
PAPERS OF JAMES MADISON 219 (Robert A. Rutland et al. eds., University of Chicago Press
1977).
46. U.S. CONST. amend. III.
47. See id.
48. U.S. CONST. amend. V.
49. See Finkelman, supra note 43, at 199-201, 207-09.
50. See id. at 205.
51. Id. at 200.
276
Syracuse Law Review
[Vol. 59:267
out-voted, and mostly because of the brilliance of James Wilson, outargued.52 After the Convention they met on their own and issued a
statement explaining why they voted against the Constitution.53 This
statement also included a huge list of demands for changes in the
Constitution. 54 Madison rejected all of the structural changes to the
Constitution proposed by the Pennsylvania minority. 5 5 However, when
writing what became the Bill of Rights he accepted many of the ideas
found in the "Reasons For Dissent" that these antifederalists published.56
Some of these proposals-those dealing with the protection of individual
libertarian rights and legal due process-were later incorporated, almost
word-for-word, into the Bill of Rights. 57 The essence, and in some places
the exact language, of the Free Exercise Clause and the Free Press and
Speech Clauses of the First Amendment are found in these fourteen
proposals, as are the ideas and in some cases the exact language of the
5 8 Elements of the
Fourth, Fifth, Sixth, Seventh, and Eighth Amendments.
59
Tenth Amendment are also found in the proposals.
Significantly, Madison was less impressed with the proposals of the
Pennsylvania minority on weapons and the military which included
demands for amendments that would guarantee: (1) the right of selfprotection through the ownership of weapons, (2) the right to serve in the
militia, (3) the right to hunt and fish, (4) the prevention of a standing army,
(5) the power of Congress over the states, and (6) the power of the states to
control their own armies or militias.60 Looking at these proposals it is clear
that if Madison and the First Congress had wanted to produce an
Amendment that protected an individual's right to own weapons, for selfpreservation or hunting-the kind of Amendment Justice Scalia incorrectly
claims they did produce-the ideas and wording were available.
While Madison borrowed heavily from the Pennsylvania minority on
other Amendments, he ignored their proposals on the militia, the army and
the right of individuals to keep and bear arms. Instead, he simply offered a
promise that the national government would allow the states to maintain "a
well regulated" militia. 6 1 This dovetailed with other provisions of the
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
Id. at 206.
Id.
See Finkelman, supra note 43, at 206.
See Finkelman, supra note 23, at 319, 325-26.
See Finkelman, supra note 43, at 206-07.
Id.
Id.
Id.
Id. at 207.
U.S. CONST. amend II.
2008]
It Really Was About a Well Regulated Militia
277
Constitution that empowered Congress to regulate the militia and provide
rules for its governance. It is critical to remember that the Constitution
gave Congress vast powers to control the military, including the state
militias. Article I of the Constitution gives Congress power to "declare
War," 62 to "raise and support Armies," 63 to "maintain a Navy," 64 to make
65
"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," 66 and to "provide for
organizing, arming, and disciplining, the Militia." 6 7 Furthermore, Article I
declares that the states may not "keep Troops, or Ships of War in time of
Peace." 68 Article II of the Constitution makes the president of the United
States the "Commander in Chief of the Army and Navy" and "of the Militia
of the several States, when called into the actual Service of the United
States." 69 These provisions also contain two important limitations.
Congress can only appropriate money for the military for two years, and
the states retain the power to appoint all militia officers and to train the
militia, provided this training complies with "the discipline prescribed by
Congress." 70 Thus, the Second Amendment did not undermine the
structure of the Constitution or the power of Congress to control and set all
the rules for creating a "well regulated Militia." 7 1 All it did was assert the
obvious-that the people of the United States would be able to serve in the
militia and that presumably, if Congress failed to provide arms,
ammunition, rules and regulations and even training manuals for the
militias, the states were free to do so.
Indeed, it is important to note that what became the Second
Amendment begins with the words: "A well regulated militia." 72 Madison,
like the other federalists who totally and completely dominated the First
Congress, was deeply committed to an orderly society. They were not
authorizing the people to create an armed mob or a rabble. After all, one of
the reasons for calling the Constitutional Convention had been the inability
of the national government to suppress Shays' Rebellion-a taxpayer revolt
U.S. CONST. art. I, § 8, cl.11.
U.S. CONST. art. I, § 8, cl. 12.
U.S. CONST. art. I, § 8, cl.13.
U.S. CONST. art. I, § 8, cl. 14.
U.S. CONST. art. I, § 8, cl. 15.
U.S. CONST. art. I, § 8, cl. 16.
3.
U.S. CONST. art. I, § 10, cl.
U.S. CONST. art. II § 2, cl.
1.
U.S. CONST. art. I, § 8, cls. 12, 16.
71. U.S. CONST. amend II.
72. Id.
62.
63.
64.
65.
66.
67.
68.
69.
70.
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in Massachusetts. 73 That was the rabble; the unorganized unregulated mob
of armed citizens. The Pennsylvania antifederalists, and their allies in other
states, might have wanted constitutional protection for precisely that kind
of mob rule, but the federalists were totally opposed to such things. They
were willing to preserve the right of the states or the people to have a "well
regulated militia," operating under such rules as Congress might set out
"for organizing, arming, and disciplining, the Militia," but they were not
interested in protecting the right of an unregulated mob to "keep and bear
arms." 74
Early in his opinion Justice Scalia criticizes Justice Stevens's dissent
for stressing that Madison's first version of the Amendment included a
specific exemption from military service for those "religiously scrupulous
of bearing arms.' 75 This clause, deleted from the final version of the
Amendment, underscores that Madison viewed the Amendment as being
about the "well regulated militia" and nothing else. 76 Scalia rejects this
argument and then asserts, "It is always perilous to derive the meaning of
an adopted provision from another provision deleted in the drafting
process." 77 Justice Scalia then goes on to assert that the proper way to
understand the Amendment is by looking to two sources: the "analogous
arms-bearing rights in state constitutions that preceded and immediately
followed adoption of the Second Amendment" 78 and the proposals for the
that came out of the antifederalist opposition to the
Second Amendment
79
Constitution.
As this article suggests, a careful examination of the antifederalists
reminds us that some of them did indeed propose the kind of Amendment
that Scalia envisions.
Some of the analogous state constitutional
provisions, which Justice Scalia also quotes in his opinion, also offer
similar language that would support the Justice's view of the Second
Amendment if in fact this language had influenced Madison's drafting the
Amendment. 80 But, like the wording of the Pennsylvania minority, James
Madison ignored these state provisions. In other words, ifJames Madison
and the First Congress had wanted to write an amendment to protect an
73. See generally LEONARD L. RICHARDS, SHAYs's REBELLION: THE AMERICAN
REVOLUTION'S FINAL BATTLE (2002).
74. U.S. CONST. art. 1, § 8, cl.16; U.S. CONST. amend II.
75. Heller, 128 S. Ct. at 2796 (citing CREATING THE BILL OF RIGHTS: THE
DOCUMENTARY RECORD FROM THE FIRST FEDERAL CONGRESS, supra note 9, at 12).
76. Id.
77.
78.
79.
80.
Id.
Id. at 2802.
Id. at 2804, 2833-34.
Heller, 128 S.Ct. at 2802-03 (citations and quotations omitted).
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It Really Was About a Well Regulated Militia
279
individual's right to own guns, there were many places for them to turn to
find such language. That Madison and his colleagues emphatically ignored
this language, is a strong indication that the framers of the Amendment did
not intend to do what Scalia wishes they had done. In that sense, Justice
Scalia seems to be using language not found anywhere in the
Amendment-language that was never even in a draft of the Amendmentto explain what the Amendment means. Indeed, one might argue it is
surely "perilous"-to use Scalia's own words-to interpret the Amendment
the First
by using language from the state constitutions that Madison 8and
1
Congress clearly chose to utterly and totally ignore and reject.
Madison's attempt to protect the "religiously scrupulous" from
"bearing arms" demonstrates that he intended the Amendment to be about
bearing arms and the militia. The fact that this language came out of the
final text does not alter Madison's intent; nor does it at all preclude an
understanding that Congress believed the Amendment was fundamentally
about a "well regulated Militia." The logical understanding of the deleted
language is that the First Congress did not want to specifically single out
one group of people-Quakers and pacifists-in the Amendments, and not
that the Congress rejected the militia orientation of the Amendment.
Madison and the Congress also clearly ignored the proposals of the
antifederalists that undermined the power of the national government and
protected an individual right to own or carry weapons. As already noted,
Madison accepted, almost word-for-word, some of the proposals of the
Pennsylvania minority for protections of individual liberties such as
freedom of speech, press, and religion. But he ignored the proposals of the
Pennsylvania minority on weapons. The members of the Pennsylvania
minority provided in their seventh proposed amendment:
[t]hat the people have a right to bear arms for the defense of
themselves and their own state, or the United States, or for the
purpose of killing game; and no law shall be passed for disarming
the people or any of them, unless for crimes committed, or real
danger of public injury from individuals; and as standing armies
in the time of peace are dangerous to liberty, they ought not to be
under strict
kept up; and that the military shall be kept 82
subordination to and be governed by the civil powers.
81. See Heller, 128 S. Ct. at 2796.
82. The Address and Reasons of Dissent of the Minority of the Convention of the State
of Pennsylvania to Their Constituents, PA. PACKET & DAILY ADVERTISER, Dec. 18, 1787,
reprinted in 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION
623-24 (Merrill Jensen ed., 1976).
280
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Their eighth proposal, an entirely separate provision, asserted that:
The inhabitants of the several states shall have liberty to fowl and
hunt in seasonable times, on the lands they hold, and on all other
lands in the United States not enclosed, and in like manner to fish
in all navigable waters, and others not private property, without
being restrained therein by 83
any laws to be passed by the
legislature of the United States.
And in number eleven of their list of desired changes they declared, first
that
the power of organizing, arming, and disciplining the militia (the
manner of disciplining the militia to be prescribed by Congress)
remain with the individual states, and that Congress shall not have
authority to call or march any of the militia out of their own state,
without the consent of such
84 state, and for such length of time only
as such state shall agree.
Then, in the second paragraph of their eleventh demand they added:
"[t]hat the sovereignty, freedom, and independency of the several states
shall be retained, and every power, jurisdiction, and right which is not by
this constitution expressly delegated to the United States in Congress
assembled. ' '8 5 This second paragraph, when tied to the previous one,
underscores the connection many antifederalists saw between state
sovereignty and the control of the state militia.
If Congress had accepted this language, then Justice Scalia's
interpretation of the Second Amendment would be correct. But the very
fact that Madison and the First Congress so emphatically rejected all of this
language, severely undermines Justice Scalia's interpretation.
There is also a strong logic that undermines Justice Scalia's
individualist reading of the Second Amendment. In addition to controlling
almost all aspects of the nation's military life, the Constitution gave the
national government the power to punish counterfeiting, 86 to "punish
Piracies and Felonies committed on the high Seas, and Offences against the
Law of Nations," 87 to "suppress Insurrections and repel Invasions," 8 8 by
employing the militias, and to suppress the African Slave Trade after
January 1, 1808.89 Congress could also "regulate Commerce with foreign
83. Id. at 624.
84. Id.
85. Id.
86. U.S. CONST. art. 1, § 8, c. 6.
87. U.S. CONST. art. I, § 8, cl. 10.
88. U.S. CONST. art. 1, § 8, cl. 15.
89. U.S. CONST. art. I, § 9, cl. 1.
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It Really Was About a Well Regulated Militia
281
Nations, and among the several States, and with the Indian Tribes."9 The
to "protect" each state from "Invasion"
U.S. government also was9 obligated
1
and "domestic Violence."
If Congress had no power to regulate the right of individuals to keep
and bear arms it could not have accomplished many of these things. The
whole of American history might have been different. If the Second
Amendment said what Justice Scalia wishes it said, then Congress and the
executive branch would have been unable to suppress various riots and
rebellions throughout our history, such as the Whiskey Rebellion, the Ku
Klux Klan violence of the 1860s and 1870s, and even modern terrorists
today. Had Congress adopted the provisions of the Pennsylvania minority,
or accepted the logic of Justice Scalia, the Washington administration
might have been unable to suppress the Whiskey Rebellion and the
Madison administration might have been prevented from calling out troops
to face down the British in 1812. Without the ability to call up the militia
and to disarm those who threatened the nation, President Andrew Jackson
might not have successfully stood up to the nullificationists in South
Carolina. In responding to the Nullification Proclamation in 1832,
President Jackson reminded the citizens of South Carolina that "[d]isunion
by armed force is treason," and made it clear that this behavior would be
met by military force equal to the task of crushing any rebellion.9 2 This
stance would not have been possible if the states had retained full control of
the militias or if the national government had been precluded from
disarming rebellious citizens. Most importantly, of course, between 1861
and 1865 President Lincoln might have had difficulty suppressing the
Confederacy in what is officially called the War of the Rebellion.9 3 Had
the restrictive provisions of the Pennsylvania minority been enacted,
President Lincoln might have been unable to call out the state militias to
suppress the rebellion. Moreover, he might also have been precluded from
disarming those traitors who had made war on the United States in hopes of
destroying the Union.
The Constitution does not have a suicide clause in it and no one
intended that it should have such a clause. The generation that wrote the
Constitution had no interest in seeing another revolution. Those who
90. U.S. CONST. art. I, § 8, cl.3.
91. U.S. CONST. art. IV, § 4.
92. Andrew Jackson, President of the U.S., Proclamation, (Dec. 10, 1832), in 2 A
COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 654 (James D. Richardson
ed., 1897).
93. See generally U.S. WAR DEP'T, THE WAR OF THE REBELLION: A COMPILATION OF
THE OFFICIAL RECORDS OF THE UNION AND CONFEDERATE ARMIES (1880-1901).
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created the Constitution and the Bill of Rights wanted stability, peace, and
then prosperity. They venerated liberty but also praised order. After the
Convention, Oliver Ellsworth, who would later become Chief Justice of the
United States, summed up this position: "Anarchy, or a want of such
government as can protect the interests of the subjects against foreign and
domestic injustice, is the worst of all conditions." 9 4 One of the goals of the
Framers of the Constitution and the federalists who totally dominated the
First Congress and wrote the Bill of Rights was to prevent anarchy,
violence, and rebellions. This prevention was accomplished by controlling
the militias and the army and by retaining the right when necessary to limit
access to weapons to those who formed "A well regulated Militia. '9 5 In
the end, the Madisonian Amendment dovetailed with the position of
George Mason, the Framer who most vociferously fought for a Bill of
Rights at the Constitutional Convention. While helping to organize
Virginia to fight a Revolution, Mason told his neighbors that, "[A] well
regulated Militia, composed of gentlemen freeholders, and other freemen,
is the natural strength and only stable security of a free Government ....96
Madison and the members of the First Congress understood this, and wrote
what became the Second Amendment, with this in mind. They wanted a
"well regulated Militia" to be part of the nation's defense against external
enemies or against internal opponents of the government who might reject
democratic change in favor of violence, lawlessness, and rebellion. By
guaranteeing the continuation of a well regulated Militia, the Second
Amendment accomplished these goals. The Framers of the Amendment
did not intend to protect an individual right to own weapons, despite the
claims of a majority of a highly politicized Supreme Court, who are more
interested in ideology and electoral politics than the very history they claim
to believe in.
94. A Landholder IX to the Honorable Gentlemen Chosen to Serve in the State
Convention (Dec. 31, 1787), in 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE
CONSTITUTION 515 (Merrill Jensen ed., 1978).
95. U.S. CONST. amend II.
96. 1 THE PAPERS OF GEORGE MASON 212 (Robert A. Rutland ed., 1970) (Mason
delivered this observation to the Fairfax County Committee of Safety on January 17, 1775).