This article is reprinted from Volume 23 (2011) of the JOURNAL ON FIREARMS & PUBLIC POLICY.
The American Revolutionary Era Origin of the Second Amendment's Clauses
David E. Young
The 5/4 split decision in the Supreme Court’s District of Columbia vs Heller case demonstrated a continuing dichotomy in Second Amendment history between relevant period sources, which were largely relied on in the Courts’ decision, and the views of modern historians that backed up the dissent in that case. Justice Breyer’s statement that most of the historians supported the Heller dissent was correct, but that is exactly the problem. The historians’ brief contained numerous errors of fact and failed to present the essential bill of rights related developmental history of the Second Amendment’s clauses. This article contains extensive and essential relevant information that directly conflicts with, or is entirely missing from, the historians’ brief to the Supreme Court.
David E. Young is a Second Amendment scholar, editor of the ratification era document collection, THE ORIGIN OF THE SECOND AMENDMENT, and author of a recent definitive history, THE FOUNDERS’ VIEW OF THE RIGHT TO BEAR ARMS. Mr. Young’s historical research was extensively cited in the 2008 Heller case, as well as the 2001 Emerson decision from the Fifth Circuit Court of Appeals.
Keywords: Second Amendment, Revolutionary Era, bill of rights, Mason triads, well regulated militia, Ratification Era, arms mantras
I. THE SOURCE OF SECOND AMENDMENT CLAUSES
The Second Amendment to the U.S. Constitution states:
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. 1
On September 26, 1789, the First Congress under the U.S. Constitution provided a definitive link back to the immediate predecessors of the Second Amendment’s ‘well regulated militia’ and ‘right of the people to keep and bear arms’ clauses. The introduction to the proposed amendments stated a general description of not only their nature and purpose but also their source:
THE Conventions of a number of the states having at the time of their adopting the CONSTITUTION expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: 2
Congress proposed the Second Amendment and other Bill of Rights provisions to satisfy the desires of state ratifying conventions. Examination of those desires makes it evident that several conventions wanted a bill of rights added to the U.S. Constitution that included a two-clause Second Amendment predecessor. Section 17 in the Bill of Rights proposed by the 1788 Virginia Ratifying Convention consisted of four clauses, the leading two being the earliest two-clause predecessor adopted by a state convention. These are the very clauses that James Madison and Congress directly relied on for development of what became the Second Amendment’s militia and arms related clauses. Virginia’s stated desire, including the reason for proposal of a bill of rights, was:
That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following:-
. . . .
17th. 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; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.3
North Carolina’s 1788 convention refused to ratify the Constitution and adopted the above Virginia language verbatim along with all of Virginia’s other amendments on August 1st.4 The New York Convention’s July 26th ratification included a declaration of rights with virtually the same two-clause Second Amendment predecessor language.5 These three closely related two-clause bill of rights provisions from 1788 state ratifying conventions are the desires Congress perceived for proposal of the Second Amendment’s clauses. Answers to the questions of who was responsible for this particular bill of rights language, how and where it originated in America, and why this particular terminology was used are of great significance, especially in any study of such a controversial provision. Such answers will help inform what the Second Amendment meant to the founding generation and dispel modern disagreement about it.
1. A Well Regulated Militia, Composed of the Body of the People
Virginia’s proposed 1788 “well regulated militia” language was an exact quote of the first clause of Section 13 from that state’s own 1776 Declaration of Rights:
SEC. 13. 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.6
The context of Virginia’s 1776 well regulated militia clause was that of a state constitutional level declaration of rights provision intended to prevent legislative violation of the stated principle.7 In an American state bill of rights, the appropriate historical context was an intent to limit government power.8 This is the same context as the 1788 Virginia and North Carolina proposals directly quoting the 1776 “well regulated militia” language, the only difference being, the later proposals protect against “misconstruction and abuse” of the new Federal Government’s powers rather than those of a state government.
2. Virginia’s Self-Embodying Armed Populace
Virginia’s Section 13 language regarding a well regulated militia of the people originated with George Mason, author of Virginia’s 1776 Declaration of Rights. Prior to its inclusion in America’s first state bill of rights, he had used well regulated militia to describe a voluntary defensive association of men in Fairfax County, Virginia, that formed months before hostilities of the American Revolution began. A look at such armed self-embodying activities and Mason’s writings regarding them is therefore essential for understanding Second Amendment related period usage and development.
George Mason, Patrick Henry, and other patriot leaders of Virginia met with George Washington at Mount Vernon in late August of 1774 long before any hostilities of the Revolution. They discussed defensive measures against threatened British actions implemented by military force. One result was encouragement of voluntary militia associations in the home counties of these leading Virginia patriots. Mason was involved from the very beginning in establishment of a voluntary defensive association in Fairfax County. A meeting of freeholders there on September 21, 1774, with Mason as chairman, formed an association that was based on the concept of the free men taking up their own arms and self-embodying for defense, as follows:
we the Subscribers, . . .being sensible of the Expediency of putting the Militia of this Colony upon a more respectable Footing, & hoping to excite others by our Example, have voluntarily freely & cordially entered into the following Association; which we, each of us for ourselves respectively, solemnly promise, & pledge our Honours to each other, and to our Country to perform.
That we will form ourselves into a Company, not exceeding one hundred Men, by the Name of The Fairfax independent Company of Voluntiers, making Choice of our own Officers; to whom, for the Sake of Good-order & Regularity, we will pay due submission. That we will meet at such Times & Places in this County as our said Officers (to be chosen by a Majority of the Members, so soon as fifty have subscribed) shall appoint & direct, for the Purpose of learning & practising the military Exercise & Discipline; dressed [in described uniform clothing – ed.]; and furnished with a good Fire-lock & Bayonet, Sling Cartouch-Box, and Tomahawk. And that we will, each of us, constantly keep by us a Stock of six pounds of Gunpowder, twenty pounds of Lead, and fifty Gun-flints, at the least. 9
By early January of 1775, still well before hostilities, George Washington indicated that such defensive associations were being formed in a number of Virginia counties:
In this County [Fairfax – ed.], Prince William, Loudoun, Faquier, Berkely, & many others round about them, a noble Ardour prevails. Men are forming themselves into independent Companies, chusing their officers, arming, Equipping, & training for the worst Event. The last Appeal! 10
Mason, while chairman of the Fairfax Committee of Safety, used language regarding a well regulated militia and standing armies very similar to that he later included in Virginia’s 1776 Declaration of Rights. From the Committee’s January 17, 1775 resolution:
that a well regulated Militia, composed of the gentlemen freeholders, and other freemen, is the natural strength and only stable security of a free Government, and that such Militia will relieve our mother country from any expense in our protection and defence, will obviate the pretence of a necessity for taxing us on that account, and render it unnecessary to keep Standing Armies among us – ever dangerous to liberty; and therefore it is recommended to such of the inhabitants of this County as are from sixteen to fifty years of age, to choose a Captain, two Lieutenants, an Ensign, four Sergeants, four Corporals, and one Drummer, for each Company; that they provide themselves with good Firelocks, and use their utmost endeavours to make themselves masters of the Military Exercise, published by order of his Majesty in 1765, and recommended by the Provincial Congress of the Massachusetts Bay, on the 29th of October last. 11
This particular language was largely copied from a December resolution of Maryland’s Provincial Committee recommending such voluntary associations in that colony.12 Mason simply applied this well regulated militia language to the existing defensive association in Fairfax County.
Mason again described the local defensive association as a well regulated militia in February of 1775. His Fairfax County Militia Plan clearly stated the purposes for such a self-embodying defensive force of the people. It warned about destruction of “our antient Laws & Liberty”, and indicated an intention to transmit “those sacred Rights”, later described as “the just Rights & Privileges of our fellow-Subjects, our Posterity, & ourselves” to “our Children & Posterity”, as well as provide the “only safe & stable security of a free Government.”13 Once again, this language was extremely similar to that later used by Mason for Virginia’s Declaration of Rights. That Maryland delegates used well regulated militia terminology to describe self-embodying defensive associations, and that it was also used by Mason in Virginia for the same purpose indicates the concept of an effective militia of the people for defense against government tyranny was substantially more widespread than a single county or colony at this period.
“Well regulated militia,” as used in early revolutionary period writings of George Mason prior to hostilities indicated that the militia, the armed free able-bodied males, were effective for defense - not that they were government authorized, organized, or trained. This is evident since the purpose of these self-arming, self-embodying, and self-training defensive associations, or independent companies was protection against government raised military forces. Mason and the men who organized for mutual defense began preparing to resist the King’s troops over six months prior to any hostilities and more than a year prior to the formation of Virginia’s 1776 Declaration of Rights.14
On March 23, 1775, Virginia’s revolutionary Convention of Delegates recommended that similar independent volunteer companies be formed in all counties of the colony. This recommendation was also expressed in language very similar to that of Mason and the Maryland Committee noted above.15 The sole reason effective independent militia associations were possible at this period in Virginia was because the men of the colony possessed their own arms and knew how to use them. Those officials and forces constituting the danger that Virginians needed to defend against, certainly were not about to make sure that Virginians possessed arms, ammunition, or training to resist unconstitutional and rights violating actions instituted by the government. On the contrary, British officials were actively engaged in disarming Americans to prevent any possible resistance. That was the reason gunpowder was seized or removed from public access under orders from the governors of both Massachusetts and Virginia prior to any hostilities of the Revolution.16
What well regulated militia language meant to the Virginians of this period was an effective self-embodying local defensive association of the free men capable of resisting government tyranny and protecting the rights of the people. Without an armed population, no such defensive activity would have been possible. As specifically included in the 1776 Virginia Declaration of Rights, a “well regulated militia” was defined as “composed of the body of the people, trained to arms”. This was a reference to the preexisting armed population that organized and trained themselves for local defense. These were the very defensive actions that made it possible for Virginians to establish a new, free government that was actually under their control.
The purpose of such a well regulated militia was also clearly stated in Virginia’s Section 13 – defense of a free state. That free state was founded on an armed civil population capable of self-embodying to prevent tyranny and assure continuation of the free state authorized in Virginia’s constitution. Virginia’s Declaration of Rights introduction specifically stated that the rights listed there were “the basis and foundation of government.”17 Without an armed population, no effective self-embodying, defensive associations could have assembled, and the creation of a free state based on such an armed population could not have been formed. There would have been no free state, only a military tyranny utilizing force to control the civil population. The free state reference appears in the Second Amendment related clause of Section 13. A defensively effective armed populace is described there in the common, Revolutionary Era terminology of an effective or well regulated militia of the people.18
In American state bills of rights, the “well regulated militia” language later employed in the Second Amendment’s first clause originated in Virginia’s 1776 Declaration of Rights. Where then did “the right of the people to keep and bear arms” style terminology first appear in a state bill of rights?
1. The People Have a Right to Bear Arms
America’s second state declaration of rights was adopted in Pennsylvania on August 16, 1776, as patriots there began formally establishing a new state government to replace the faltering colonial edifice. Virginia’s Section 13, above, was the direct model for protection of the same three related concepts found in Section 13 of Pennsylvania’s new Declaration of Rights:
XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power. 19
2. Pennsylvania’s Self-Embodying Armed Populace
It was Pennsylvania that first used “the people have a right to bear arms” style language in an American state bill of rights. As with the “well regulated militia, composed of the body of the people” language of Virginia’s Section 13, Pennsylvania’s “the people have a right to bear arms” language, located in the first clause of its bill of rights Section 13, was also closely related to prior actions in the latter colony early in the American Revolution. However, unlike Virginians, Pennsylvanians did not begin defensive preparations in earnest until after war actually broke out in Massachusetts.
Upon news of the battles at Lexington and Concord on April 19, 1775 reaching Pennsylvania, men all across the colony spontaneously associated for defense. The men took up their own arms, formed companies, elected officers, and trained themselves for mutual defense. These self-embodying defensive associations were exactly like the defensive associations and independent companies that had been formed well before hostilities in the counties of Virginia, and they were formed for exactly the same reasons as those in the neighboring colony. British government officials clearly intended to compel obedience to their commands by employing military force. Since British decrees and use of military force were unconstitutional and violated their inherent rights, Americans decided they were not only under no obligation to obey, but were fully justified in resisting government military force with arms if necessary.20
Unlike each of the other American colonies regarding defensive preparations, Pennsylvania’s colonial government did not rely on the militia because its Quaker population was able to prevent the colonial assembly from passing laws requiring military duties. The other colonies passed laws requiring virtually all of the free able-bodied males to obtain arms and train in peacetime to function as soldiers for defense during emergencies.21 In stark contrast, all organized defensive activities in Quaker founded Pennsylvania were carried out either by the wartime hiring of troops, who volunteered to sign up for service as soldiers for a term of duty, or by individuals at their own discretion taking up their own arms, forming companies, electing officers, and training themselves for mutual defense. There were a number of earlier occasions during the colony’s history when men formed defensive associations just as they did upon news of hostilities in Massachusetts.22
Pennsylvania’s 1776 Declaration of Rights language “the people have a right to bear arms” was the essential foundation of self-embodying defensive associations. The right included the concept of men taking up their own arms to self-organize for mutual defense, something Pennsylvanians had previously done whenever necessary. The history of Pennsylvania associators helps inform why reference to “a well regulated militia” was not copied from Virginia and included in the Quaker state’s bill of rights as a description of its defensively effective armed population. Instead, the fundamental right making such a defensively effective population possible, the people’s right to bear arms, was stated in the same clear language as the people’s rights to freedom of assembly, the press, and of writing and publishing their sentiments. Such defensive associating was fundamental to the concept of an armed populace as a check on tyranny from government raised forces. Like Virginia’s declaration of rights provision, Pennsylvania’s was also directed at preventing abuse of power by those at the helm of the state government authorized by the 1776 constitution.
II. DEFENSIVE ASSOCIATIONS, PRIVATE ARMS, AND CIVIL CONTROL OF THE MILITARY
A. Similarities of Arms Related Bill of Rights Language
While the “well regulated militia, composed of the body of the people” clause of Virginia’s bill of rights and “the people have a right to bear arms” clause of Pennsylvania’s may at first glance seem to be entirely different concepts, a closer look at the extensive overlap of their terms, other features, period developmental history, and complete context indicate striking and overwhelmingly similarities. The histories of the two colonies, as shown above, indicate identical origins for the individual arms rights based defensive association concept protected by each form of Second Amendment predecessor. Also, both were bill of rights provisions intended as limits on state legislative authority, related to defense, specified defense of the state, and referred to the people and arms.23
Both forms also related to a population in which private arms possession and use were common. This was largely the result of widespread everyday activities related to destruction of pests and dangerous predators on the farm, hunting, target shooting, and self-defense/mutual defense, especially on the wild frontiers of which Virginia and Pennsylvania were amply provided. As a result, Americans also possessed the inherent capability of self-organizing for effective armed defense against tyranny. This was clearly demonstrated early in the American Revolution not only by Virginians and Pennsylvanians but also by the people of the other colonies.
In the first two American declarations of rights, armed populations capable of checking tyranny, establishing free government, and assuring continuation of a free state were declared to be the natural defense and the people’s right, respectively. The essential element of these defensive concepts as a check upon tyranny from government employed force was private arms possession and use. Just as an effective militia of the people was “the basis and foundation of government” in Virginia, according to the preamble of its Declaration of Rights, the people’s right to bear arms was the essential foundation for the declaration that “all men . . . have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty”, as declared in the first clause of Pennsylvania’s Declaration of Rights.24
B. George Mason’s Triad
Another similarity in both Virginia’s and Pennsylvania’s Section 13 bill of rights provisions was that protection for an armed populace was the leading concept in a three part provision, a fact of considerable significance regarding the complete context of Second Amendment predecessors. As appears from Pennsylvania’s extensive copying of Virginia’s Section 13 language, copying and borrowing provisions from earlier states by those subsequently adopting a bill of rights during the Revolutionary Era was a very common practice. Three other states, Delaware, Maryland, and New Hampshire adopted extremely similar three-part protective structures with a leading “well regulated militia” provision derived from Mason’s 1776 Virginia Section 13.
The remaining three states with declarations of rights, North Carolina, Vermont, and Massachusetts also adopted such three-part Section 13 related structures, but these based their leading clauses on “the people have a right to bear arms” language from Pennsylvania’s 1776 original. Massachusetts was the sole state to inserted “to keep” into its right to arms language, partly as a result of General Gage’s disarming of Boston’s civil population.25 Thus, all eight states that adopted a constitutional declaration of rights during the Revolutionary Era included a complete triad of protections originating from Virginia’s Section 13. Half of the states used well regulated militia references, and the other half used people have a right to bear arms language in their first clauses. Such uniquely American three-part bill of rights protections have been dubbed Mason Triads in honor of George Mason, author of the 1776 Virginia original.26
C. A Closer Look at Mason Triads
The eight revolutionary era Mason Triads were remarkably alike indicating similarity of intent. They all began with a Second Amendment related clause. The middle clause or section always included a warning that standing armies were “dangerous to liberty” and placed some restriction on raising them. The final clause indicated that the military should be under strict subordination to, and governed by, the civil power, with four states specifying this was so “in all cases” and two of those states also adding “at all times” in case it was not already clear enough. All Mason Triads other than Vermont’s, which copied Pennsylvania’s verbatim, varied the language of each triad part somewhat. Examples of unique differences in the final part were Maryland’s “control of” substituted for “governed by” and Massachusetts’ “civil authority” substituted for “civil power” found in the other seven declarations.
The three distinct parts of Revolutionary Era Mason Triads were always presented in the order described. In five of the eight state declarations of rights, these parts existed as three separate clauses in the same section. In the other three states, each clause was located in a separate numbered section.
In addition to the state bill of rights context of Second Amendment related triad clauses, as examined above for Virginia and Pennsylvania, there is also their context in relation to the other parts and overall purpose of Mason Triads. Each part was intended as a limit on the government in some way, and the parts were interrelated. The first part secured a defensively effective armed population by declaring the people have a right to bear arms or that a well regulated militia is the “proper” and “natural” defense of a “free” state or government.27
In stark contrast to these assertions of the proper and natural defense or right of the people, the second triad part discouraged government reliance on standing armies. Half of the eight state declarations indicated a peacetime standing army ought not to be kept up, a prohibition, and the other four required “consent” of the legislative body for an army, a limitation. By prohibiting or discouraging a standing army, the preferred reliance upon the proper and natural defense of a free state, its armed civilian population, which could be called out for defense during emergencies as militia, was increased. This would promote the liberty of the people in comparison with a constant standing army that was “ever dangerous to liberty”.
These first two contrasting triad parts, as well as the last, were developed with a stark example of danger from a standing army directly at hand, the British troops enforcing military control over Boston’s civil population. British authorities appointed a general, backed by a standing army, as governor in charge of civil society in Massachusetts. To Americans, officials employing force to rule over the people was understood as the very antithesis of free government. Americans had always largely controlled their own destiny by selecting all or most of their colonial officials under known and established constitutions (charters) and laws assented to by their own representatives. Americans’ new state constitutions clearly established civil control of the military, not only in the letter of the law but in fact, because they constitutionally protected the power of an armed civil population to back up that control.28
The more Mason Triad clauses are examined in relation to their historical origin and internal context, the more clear the intent of their language becomes. One of the earliest Revolutionary Era patriot texts to address the interrelated concepts that were later combined into Mason Triads was Josiah Quincy’s Observations on the Boston Port Bill With Thoughts on Civil Society and Standing Armies. It was published in Boston in mid-May 1774 around the time General Gage, the new military governor of Massachusetts, arrived with more troops to overawe and control the Americans. This was two years prior to the adoption of Mason’s original triad in the Virginia Declaration of Rights.
Quincy’s Observations went into extensive detail about the advantages of “a well regulated militia, composed of the freeholders, citizens, and husbandmen, who take up arms to preserve their property as individuals, and their rights as freemen.” He placed this concept and the other two triad related ideas in the context of the then current use of force by British authorities and their onerous governmental innovations. Quincy’s view was that authorities can never make the military forces they employ superior to civil society because, as he so clearly stated, “[t]he people who compose the society . . . are the only competent judges of their own welfare, and therefore, are the only suitable authority to determine touching the great end of their subjection and their sacrifices.” Quincy’s text was an early example of what became a widespread American patriot viewpoint and foundation of their equally widespread local defensive activities as the Revolution inexorably developed.29
III. RATIFICATION ERA SECOND AMENDMENT PREDECESSORS
A. The Ratification Era Bill of Rights Dispute
On September 17, 1787, six years after the Battle of Yorktown, which brought an end to major battles of the Revolution, the U.S. Constitution was published by the Federal Convention in Philadelphia. An intense public dispute over its ratification quickly developed. The most effective argument against ratification from Antifederalists, the Constitution’s opponents, was the lack of a bill of rights like those of the states in the new form of government. Since each of the eight state bills of rights contained a Second Amendment related provision, general demands for a bill of rights constituted demands for adding Second Amendment protection along with protection for all of the other essential rights later included in the first eight amendments to the Constitution.
The lack of a bill of rights complaint originated within the Federal Convention itself. Late in the proceedings, it became evident to George Mason that the Constitution as proposed in the second draft from the Committee of Style would have little or no protection for the rights of the people as secured in the existing state declarations of rights. He initiated a request on September 12th for a committee to draw up a bill of rights. Even though Mason emphasized that “with the aid of the state declarations, a bill might be prepared in a few hours”, a committee for the purpose was rejected by the delegates, most of whom were anxious to return home after months in Philadelphia.30 This action incensed the elder Virginia delegate and author of America’s first state declaration of rights, leading Mason not only to refuse signing the Constitution, but continue his later bill of rights advocating antifederalism.31
Mason wrote a number of objections to the Constitution on the back his Committee of Style Report during the final days of the Convention.32 The complaints about lack of a bill of rights were prominently placed at the top of his list. That Mason opposed ratification and supported a Federal bill of rights based on the state declarations of rights became common knowledge because of both his notorious refusal to sign the new form of government and his industrious sharing of his list of objections with everyone he wrote or personally contacted. He sent copies with letters to a number of correspondents, including Thomas Jefferson and George Washington. The copy sent to Washington and published early in the ratification struggle began:
Objections to the Constitution of Government formed by the Convention.
There is no Declaration of Rights, and the Laws of the general Government being paramount to the Laws & Constitutions of the several States, the Declarations of Rights in the separate States are no Security. Nor are the People secured even in the Enjoyment of the Benefits of the common-Law, which stands here upon no other Foundation than it’s having been adopted by the respective Acts forming the Constitutions of the several States - 33
Mason’s objections make it clear that it was the security of the people and their rights against government actions that his bill of rights concerns were directed. Adding to Mason’s Antifederalist notoriety, his objections were widely republished, resulting in his being a well known promoter of adding state bills of rights protections as foundation for a Federal bill of rights.
A significant example of George Mason’s bill of rights promoting personal contacts occurred prior to leaving Philadelphia, where he was chastised by Federalists in newspapers for this activity. After the close of the Federal Convention, Mason met with John Smilie, William Findlay, and Robert Whitehill, the men who later became Antifederalist leaders of the Pennsylvania Ratifying Convention’s minority. Mason’s understanding of the need for a Federal bill of rights was a major point of discussion in such meetings since it was foremost among his objections to the Constitution.34
The Ratifying Period bill of rights debate that subsequently developed was not about which rights were important to include in a Federal bill of rights or what the meaning of the existing protections was. Those points were well understood because the desired rights protections were all “essential and unalienable rights of the people”35 that were found in the existing state declarations of rights. The main issue during ratification was whether these core rights, protected against state governments, needed to be protected against the proposed Federal Government as well. A related issue was whether the Constitution should be amended with a bill of rights prior to or after its ratification. The final fate of bill of rights proposals, including protection for the right to keep arms, was eventually voted on by seven state ratifying conventions.
B. Ratification Era Arms Related Mantras
Another topic of intense period dispute was the military powers given to the new government under the Constitution. Military force could be used to destroy liberty and impose tyranny, something Americans had experienced firsthand from the British in the very recent past. Americans were also well aware that one of the first things necessary for such tyranny to succeed would be the disarming of the population, something else experienced when the British gained military control.36 Under the proposed Constitution, Congress could raise an army and provide for organizing, arming, and disciplining the militia. Antifederalists saw danger to liberty in these provisions because Congress could establish a peacetime standing army or a select militia, from either of which tyranny would ensue. In their view, a select militia, one not including all the able-bodied free men, was the equivalent of a part-time standing army.
Antifederalists developed a mantra usually related to proposed military powers that stated, in its simplest form, the people or militia would be disarmed and tyranny result. Some argued this would occur gradually and almost imperceptibly over time, while others asserted it was the plan of the Framers all along and would start as soon as an army was raised.
Quite to the contrary, Federalists were not in favor of tyranny and thought such concerns entirely groundless. Federalists developed their own mantra that tyranny under the Constitution was not possible because the people were armed. Both the Federalist and Antifederalist mantras were stated in a wide variety of ways.37 Most of these arms mantras related to Mason Triad concepts in a very general way because they dealt with an armed population as the counter to tyranny imposed by government raised military force. These mantras indicate that both Federalists and Antifederalists understood the people of America should possess arms in order to preserve liberty and protect themselves against tyranny.38
A definitive Ratification Era text that greatly clarifies common period usage of militia related terminology is Alexander Hamilton’s The Federalist #29, which discussed the militia powers in the proposed Constitution. Hamilton equated the militia and the people in three separate instances within this text. He described the militia as “the great body . . . of the citizens”, “the people at large”, and as “the whole nation”. When Hamilton described a militia not consisting of the body of the people, but rather of individuals selected by the government, he used the adjective “select” to indicate it would consist of a portion of the entire militia. Thus, his reference to “formation of a select corps” indicated that corps of militia would consist of only part of the militia.39 Hamilton’s text also indicated that “well regulated” in conjunction with “militia” meant effective or proficient, and that this was an inherent condition of the militia, not something that could be bestowed upon them by someone else. “Well regulated” simply meant “effective” when combined with “militia”.40 Hamilton’s usage of “militia”, “select militia”, and “well regulated militia” was common and consistent with that generally used throughout the American Colonial, Revolutionary, and Ratification Periods.41
C. Proposed Bill of Rights Assurances for an Armed Population
The Federalist and Antifederalist Mantras were an ongoing background for numerous bill of rights demands during the fierce public dispute over ratification. It was these demands that were the impetus for development of the U.S. Bill of Rights.42 Ratifying convention Second Amendment predecessors were taken virtually verbatim from existing state declarations of rights protections. In fact, complete Mason Triads were the main vehicle used for proposals intended to protect an armed populace in five state conventions,43 and standing army provisions were associated with those in the other two.44 A bill of rights written by George Mason in 1788 and based on his 1776 Virginia Declaration of Rights became the model for the U.S. Bill of Rights. It is essential for a clear understanding of the Second Amendment that its predecessor development during ratification from the existing government limiting state bills of rights provisions and George Mason’s central involvement be fully understood.
Pennsylvania’s ratifying convention was the first to meet, assembling on November 20th, 1787, just over two months after the Constitution was published. There was extensive debate in the convention concerning the new government’s military powers, the threat of tyranny, and the need for a bill of rights. The latter was vigorously argued by minority leaders, who not only prepared a list of bill of rights proposals based directly on provisions of the existing Pennsylvania Declaration of Rights, but also forced a vote by linking them with a motion to adjourn. The 15 minority proposals, introduced in the convention by Robert Whitehill on December 12, 1787, included Pennsylvania’s complete 1776 Mason Triad.45 This earlier right to bear arms provision was expanded with language relating the right to defense of the United States and to killing game, as well as a clause explicitly preventing laws “for disarming the people or any of them”.46 All of these minority proposed bill of rights protections and some other amendments, the latter including an unrelated militia powers amendment, were rejected by the overwhelming Federalist majority, which voted against any adjournment.47 On December 18, the unsuccessful members of the Pennsylvania Minority published their arguments and bill of rights proposals in a long Dissent that became one of the Ratification Era’s most extensively reprinted political tracts. The Dissent of the Pennsylvania Minority spurred much more widespread and thorough discussion of the need for a Federal bill of rights.48
The second attempt within a ratifying convention to add core bill of rights protections occurred in Massachusetts, where Samuel Adams offered a proposal relating to 1st, 2nd, and 4th Amendment rights at the end of the convention on February 6, 1788. This proposal included the first two parts of a Mason Triad denying federal authority “to prevent the people of the United States, who are peaceable citizens, from keeping their own arms” and preventing a standing army being raised unless necessary. Adams’ proposal was defeated.49
Each of the five subsequent attempts to approve bill of rights provisions that included Second Amendment related protection in state ratifying conventions was successful.50 On June 21, 1788, the New Hampshire Ratifying Convention became the first to adopt core bill of rights proposals, which included Second Amendment related protection. These proposals were appended to the list of nine Federalist prepared amendments that Massachusetts previously adopted. Added by New Hampshire were the first two parts of a Mason Triad, one declaring that “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion”, and the other preventing raising of a standing army in time of peace unless with the consent of ¾ majority vote in each house of Congress.51
D. George Mason’s Virginia Model for the U.S. Bill of Rights
George Mason drew up the “bill or declaration of rights” adopted almost word for word by the 1788 Virginia Ratifying Convention. Mason was chairman of an ad-hoc committee of Antifederalists who agreed upon amendments supported by those opposed to ratification. Since all of Mason’s bill of rights proposals were developed from existing state declaration of rights protections, they were quickly assembled and easily received widespread support from the Antifederalists in the convention. He completed a twenty section bill of rights within a few days of the delegates’ convening and also began working on a list of “other” non-bill of rights amendments that eventually included twenty provisions by the end of the month long convention.
Mason’s 1788 bill of rights proposal was based directly on the Virginia Declaration of Rights, an earlier Mason production from 1776. Added to its protections were a few provisions taken from other state declarations. Not found in Virginia’s 1776 original, Mason added freedom of speech from the Pennsylvania Declaration of Rights to his 1788 version. He also strengthened provisions by duplicating them using alternate language protecting the same right taken from other states’ bills of rights. One example of such duplication was expanding the 1776 Virginia “freedom of the press” language by adding Pennsylvania’s that was more descriptive of the people’s right of “writing, and publishing their sentiments”.52
E. Origin of the Two-Clause Second Amendment Predecessor
The other major example of duplication was the Second Amendment related protection. This resulted from Mason’s addition of Pennsylvania style language copied from the Massachusetts Declaration of Rights, “[t]he people have a right to keep & to bear arms”, preceding a quote of Mason’s original 1776 Section 13 well regulated militia language. Comparing Mason’s Section 17 Mason Triad proposal, below, to the Virginia Ratifying Convention’s adopted Section 17,53 the sole differences in Second Amendment related language are substitution of “and” for “&” and dropping “to” prior to “bear arms” in the convention’s version. Mason’s 1788 triad stated:
17. That the People have a Right to keep & to 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; that standing Armys in time of Peace are dangerous to Liberty, and therefore ought to be avoided, as far as the Circumstance and Protection of the Community will admit; and that in all Cases, the Military shou’d be under strict Subordination to and govern’d by the Civil Power. 54
Delegates of North Carolina’s ratifying convention refused assent to the Constitution on August 1, 1788. They resolved that a declaration of rights and other amendments be laid before Congress and a new convention of the states prior to North Carolina ratifying the Constitution. The convention then adopted the Mason based Virginia Convention Bill of Rights and “other” amendments verbatim as well as added six new amendments of their own.55
Prior to North Carolina’s action, New York’s Antifederalist leaders relied directly on George Mason’s Bill of Rights model for development of the declaration of rights included in that state’s ratification document. John Lamb of the New York Federal Republican Committee sought cooperation on amendments from all three of the Virginia convention’s Antifederalist leaders, George Mason, Patrick Henry, and George Grayson, via special courier delivered letters. As noted previously, Mason’s bill of rights was prepared and completed early in the convention. Thus, on June 9th, seven days into the month long convention, when all three Virginians responded to Lamb using the same courier, Mason was able to include a complete copy of his bill of rights model.
Immediately on receipt of Mason’s proposal at New York City, Lamb transmitted it to Antifederalist leaders of the New York Ratifying Convention. Not having a constitutional level bill of rights in New York and wishing to cooperate on similar amendments, Antifederalists in that state’s convention extensively relied upon Mason’s model for their Federal bill of rights proposals. In fact, they were utilizing Mason’s bill of rights proposals prior to their later introduction in the Virginia convention where they originated. This cooperation between Antifederalist leaders in Virginia and New York was a major reason for extensive similarity between the 1788 Virginia proposed Bill of Rights and the Declaration of Rights found in New York’s Ratification.56
As a result of this Antifederalist cooperation, the last three ratifying conventions of 1788, Virginia, North Carolina, and New York, each adopted complete bills or declarations of rights including a duplicated or two-clause Second Amendment proposal as the lead part of a complete Mason Triad.57 All three of these two-clause proposals started with the declaration “That the people have a right to keep and bear arms”. In the Virginia and North Carolina versions, that was followed by a verbatim quote of Virginia’s 1776 well regulated militia clause. New York’s convention used virtually the same well regulated militia language, changing only the definition of a well regulated militia, from Virginia’s: “composed of the body of the people trained to arms”, to New York’s: “including the body of the people capable of bearing arms”. [Changed language underlined. Italics original.]
IV. SECOND AMENDMENT DEVELOPMENT IN CONGRESS
In order to procure enough votes for ratification of the Constitution by Virginia, James Madison, Federalist leader in its 1788 ratifying convention, had promised to support most of the Antifederalists’ bill of rights provisions and a few of their “other” proposed amendments.58 He later complied with this promise by presenting a reorganized version of Virginia’s proposed bill of rights and four of its less drastic “other” amendments to the House of Representatives on June 8, 1789.59 While perfectly willing to protect the people’s right to possess and use their own arms, as well as the other individual rights protections sought by the Antifederalists, he was not willing to support their attempts to alter any Article 1, Section 8 powers of Congress. Madison’s version of selections from the state ratifying conventions’ amendments proposals, as well as the full state proposals themselves, were all assigned to a House committee for consideration on July 21, 1789.60 His version consisted primarily of protections from Virginia’s desired “declaration or bill of rights” along with only four proposals taken from Virginia’s list of twenty “other” amendments.61
Madison had no reason to include the second and third Mason Triad parts along with his two-clause Second Amendment proposal to Congress. Federalists did not want to discourage the Federal Government, which would be responsible for defense of the entire country, from having an army whenever Congress determined one to be necessary. The Constitution already required approval of the legislative branches for raising an army and funding reauthorization every two years, in effect implementing the equivalent of the second Mason Triad section limitations found in four of the existing state declarations of rights.62
Similarly, Federalists understood the Constitution, authorized by the people, to already ensure civil control of the military by placing government raised forces directly under command of the President, who was a civil officer under a civil constitution authorized by the civil population. It did not establish a military government nor provide any authorization for government raised forces to take control, whether under direction of government officials or acting on their own. The Ratification Era debates make perfectly clear that Federalists based their polity on the existence of an armed civil population capable of preventing military tyranny. These arguments consistently indicated that the people would always possess force capable of assuring their ultimate control over any possible government raised forces.63
Most of Madison’s private rights protections, including the Second Amendment’s antecedent language, were grouped together for insertion into the Constitution at the only location where individual rights were protected against the new Federal Government.64 His Second Amendment proposal closely followed Virginia’s bill of rights desire. He altered its declaration that “the people have a right to keep and bear arms” by simply adding restrictive language to read “the right of the people to keep and bear arms shall not be infringed.” This language was not altered by Congress other than to later switch the order of the two clauses. Madison phrased his second, well regulated militia clause to be dependent on the keep and bear arms clause, as follows:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; . . .65
Since the militia, to be effective, would be fundamentally dependent on arms possession and use, Madison’s change of the well regulated militia clause from Virginia’s simple declaration to a clause indicating dependence on the right of the people to keep and bear arms made perfect sense. Madison had been a member of the 1776 Virginia committee that drew up and approved the 1776 Virginia Section 13 “well regulated militia” language, which was the very language his Second Amendment proposal was developed from.66 He well understood that private arms possession was fundamental to this self-embodying defensive concept, especially in a bill of rights context limiting government power.
The House select committee on amendments altered Madison’s well regulated militia language to more closely match the Virginia original by re-inserting “composed of the body of the people” and replacing “free country” with “free state”. A committee change was also made to the order of the clauses as proposed by both Virginia and Madison, placing the dependent militia clause before the restrictive keep and bear arms clause.67 The Senate later added “necessary to the” in place of “the best” security language and dropped the definition of a well regulated militia being “composed of the body of the people”.68 Since the right to keep and bear arms was protected for the people, and the militia were understood to be the people, the reference to the people in the well regulated militia clause was an unnecessary duplication.
All twelve of the amendments proposed by Congress on September 26, 1789, were included with those Madison introduced on June 8th. The last ten of the congressional proposals were ratified by ¾ of the state legislatures with action by Virginia’s legislature on December 15, 1791. These ten amendments, the first eight protecting individual rights taken from state bills of rights, and the last two taken from Virginia’s list of “other” amendments, became what Americans have always referred to as the U.S. Bill of Rights, even though that title was never included in any of the amendment proposals of Congress.69
V. CIVIL CONTROL OF THE MILITARY IS NOT OBSOLETE
It has been suggested that the Second Amendment’s language is so confusing and ancient as to be completely obsolete and presumably fit to be ignored. Historical evidence directly contradicts this view. To the contrary, American history indicates that Americans of all post-colonial periods have viewed Second Amendment related protections against misconstruction and abuse of power by the state and Federal governments as essential underpinnings of the free governments they authorized and intended to maintain.
If protection for an armed populace and other Mason Triad related clauses had simply disappeared after the American Revolution, they would have had little significance beyond their study relative to the Revolutionary Period itself. However, that is far from the case. Mason Triads were the vehicle for proposal of the two-clause Second Amendment predecessor by state ratifying conventions. Also, the people of the states have rather consistently included Mason Triad provisions in the bills of rights of their constitutions right up to the latest revisions.70 Declarations that the military should be subordinate to the civil power appear in the constitutions of forty-nine states, many based directly on terminology that originated with George Mason in 1776. Seven states have included complete Mason Triads in updated constitutions since 1971.71
Because the Second Amendment’s clauses were developed directly from the early states’ bills of rights, there is also a direct link between them and related modern state bill of rights provisions, which were either based on those of the early states or the Second Amendment itself. At least forty-five states have bills of rights containing Second Amendment related protections, many quoting its very terms.72 The people of at least sixteen states have either added or made updates to their existing Second Amendment related provisions since 1960. The vast majority of these changes employed language that could not be misinterpreted regarding the right of individuals to keep and bear their private arms. Most of these updates appear to be in response to modern dispute questioning the individual rights protecting nature of the Second Amendment’s language.73
These historical facts indicate that the Second Amendment’s protection has never been viewed as obsolete by the people of America. Quite to the contrary, they indicate that the overwhelming majority of Americans are as much concerned today about preserving their control over governments they authorize and the forces raised by them as were their ancestors when they bound the state and Federal governments with constitutional level bills of rights during the Founding Era. Considering the enhanced number, nature, and power of modern military forces available to the government, as well as the extent to which governments tend to employ an ever bigger and widening array of armed enforcement agencies, many often militarized in more recent times, the possibility of tyranny from government force employed against the people most assuredly has not decreased since our country’s inception.
The concept that governments should possess a monopoly of force was not the viewpoint of Americans during the Founding Era. Our states and nation came into being because Americans decided to end British attempts to place the military in control of the civil population of Massachusetts. Americans replaced British military tyranny with civil governments dependent upon and supported by the inherent power of the people themselves. They assured that nothing like a government of force, the opposite of a free government, could ever again be set up in the United States. This was accomplished by simply protecting the right of the people to keep and bear arms, thus assuring their ability to self-embody for effective organized defense.
All eight Revolutionary Era Second Amendment predecessors, as well as the three Ratification Era two-clause proposals copied from them, were leading parts of complete Mason Triads. This context indicates the intention of both Second Amendment clauses was to assure the armed civil population’s control over government raised military force for the purpose of preventing oppression and tyranny. The First Congress, by protecting the right of the people to keep and bear arms, assured the people of being in a position to self-embody as an effective militia. Indeed, this was the very foundation of the Federalists’ polity as often expressed in their arms related mantra during the ratification struggle. A free state was ensured by such an armed populace because the people were inherently able to prevent the forceful implementation of acts that violated their rights and the Constitution. In the unlikely event such situations of force should ever arise, the people by merely defending themselves would be enforcing the supreme law of the land, and those attempting to use force against the people would be in direct violation of that supreme law, which the people had authorized.
Today, to the extent that the Second Amendment’s language is considered confusing or unclear, one thing is certain. Those applying such descriptions are unfamiliar with or ignoring the Second Amendment’s extensively documented American bill of rights history and period usage of its terms. Our history conclusively demonstrates both Second Amendment clauses are part and parcel of the individual rights protections that constitute the first eight amendments of the U.S. Bill of Rights. All of these provisions resulted from state ratifying convention desires that protections of the existing state bill of rights be added to the U.S. Constitution in a Federal Bill of Rights.74 The relevant historical documents indicate that the Second Amendment’s clauses, just like their state bill of rights predecessors, were intended to protect individual rights against misconstruction and abuse of government powers.
Revolutionary Era State Declaration of Rights Mason Triads
1. Virginia - June 12, 1776
“SEC.13. 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.” [David E. Young, The Origin of the Second Amendment, (hereafter ORIGIN), 2001, Golden Oak Books, Ontonagon, Michigan, pp. 748-749.]
2. Pennsylvania - August 16, 1776
“XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.” [ORIGIN, p. 754.]
3. Delaware - September 11, 1776
“SECT. 18. That a well regulated militia is the proper, natural and safe defence of a free government.
SECT. 19. That standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the Legislature.
SECT. 20. That in all cases and at all times the military ought to be under strict subordination to and governed by the civil power.” [ORIGIN, p. 752.]
4. Maryland - November 11, 1776
“XXV. That a well-regulated militia is the proper and natural defence of a free government.
XXVI. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature.
XXVII. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.” [ORIGIN, p. 758.]
5. North Carolina - December 18, 1776
“XVII. That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.” [ORIGIN, p. 762.]
6. Vermont - July 8, 1777
“XV. That the people have a right to bear arms for the defence of themselves and the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.” [ORIGIN, p. 767.]
7. Massachusetts - October 25, 1780
“XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.” [ORIGIN, p. 773.]
8. New Hampshire - June 2, 1784
“XXIV. A well regulated militia is the proper, natural, and sure defence of a state.
XXV. Standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the legislature.
XXVI. In all cases, and at all times, the military ought to be under strict subordination to, and governed by the civil power.” [ORIGIN, p. 778.]
Ratification Era Mason Triad Related Proposals In State Ratifying Conventions
1. Pennsylvania Ratifying Convention
Minority Proposal - Rejected Dec. 12, 1787
“7. That the people have a right to bear arms for the defence 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 kept up; and that the military shall be kept under strict subordination to and be governed by the civil power.” [ORIGIN, p.151. Note: One of 15 minority proposals rejected.]
2. Massachusetts Ratifying Convention
Samuel Adams Proposal - Rejected Feb. 6, 1788
“And that the said Constitution be never construed to authorize Congress . . . to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defence of the United States, or of some one or more of them. . .” [ORIGIN, p.260. Note: Adams’ other protections related to the 1st and 4th Amendments were also rejected.]
3. New Hampshire Convention
Adopted June 21, 1788
“X. That no standing army shall be kept up in time of peace, unless with the consent of three fourths of the members of each branch of Congress; . . .
. . . .
XII. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.” [ORIGIN, p.446.]
4. Virginia Ratifying Convention
Bill of Rights Proposal Adopted June 27, 1788
“17th. 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; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.”
5. New York Convention Ratification Document
Declaration of Rights Adopted July 26, 1788
“That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.
That the militia should not be subject to martial law, except in time of war, rebellion, or insurrection.
That standing armies, in time of peace, are dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that at all times the military should be under strict subordination to the civil power.” [ORIGIN, p.481.]
6. North Carolina Ratifying Convention
Ratification Refused & Bill of Rights Proposal Adopted Aug. 1, 1788
“17. 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; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.”
7. Rhode Island Convention Ratification Document
Declaration of Rights Adopted May 29, 1790
“XVII. That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state; that the militia shall not be subject to martial law, except in time of war, rebellion, or insurrection; that standing armies, in time of peace, are dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that, at all times, the military should be under strict subordination to the civil power; . . .” [ORIGIN, p.735.]
1 The ratified Second Amendment as printed in Secretary of State Thomas Jefferson's March 1, 1792, authenticated imprint of the amendments proposed by Congress on September 26, 1789. Copies of the imprint accompanied notification that the last 10 of the 12 proposed amendments had been ratified by 3/4 of the state legislatures. David E. Young, The Founders’ View of the Right to Bear Arms (cited hereafter as FOUNDERS’ VIEW ), 2007, Golden Oak Books, Ontonagon, Michigan, p. 222.
2 FOUNDERS’ VIEW, p. 221.
3 David E. Young, The Origin of the Second Amendment: A Documentary History of the Bill of Rights in Commentaries on Liberty, Free Government, and an Armed Populace, 1787-1792 (cited hereafter as ORIGIN), 2001, Golden Oak Books, Ontonagon, Michigan, pp. 457, 459. All four clauses of Section 17 are presented for internal context, which is examined below.
4 ORIGIN, pp. 503-509.
5 Appendix II, item 5.
6 ORIGIN, pp. 748-749. Adopted June 12, 1776. Not only are the well regulated militia clauses identical in Virginia's 1776 Section 13 and 1788 Section 17, the final "civil power" clauses are also identical, and the middle "standing armies" clauses are nearly the same with some added language in the newer version. The internal context is examined below.
7 See FOUNDERS’ VIEW, p. 75, for Edmund Randolph's view that the legislature's acts should not violate any of the principles or canons contained in Virginia's Declaration of Rights. See ORIGIN, p. 436, for George Mason's 1788 statement relating to Virginia’s Declaration of Rights that "there were certain great and important rights, which the people, by their bill of rights, declared to be paramount to the power of the legislature." See ORIGIN, p. 657 for James Madison's statement in Congress that "[t]he people of many States have thought it necessary to raise barriers against power in all forms and departments of Government”. Mason, Randolph, and Madison were well aware of the purpose of state bills of rights because all were members of the committee that drew up and approved Virginia's 1776 Declaration of Rights. See FOUNDERS’ VIEW, p. 63.
8 The professional historians’ 2008 amicus brief to the Supreme Court in the District of Columbia vs Heller case essentially argued that state laws would be paramount to provisions in the first eight state bill of rights. That view is in direct conflict with statements of Randolph, Mason, and Madison, who were involved in writing America's first state declaration of rights. See note 7, above. The historians' brief includes numerous errors of fact as well as omissions of essential information that have been identified and documented by the author in “Root Causes of Never-Ending Second Amendment Dispute” posted at On Second Opinion Blog. This 24 part series commenced January 25, 2009 at: http://onsecondopinion.blogspot.com/2009/01/root-cause-of-never-ending-second.html
The professional historians’ Heller brief can be found at ScotusBlog:
9 Robert A. Rutland, ed., The Papers of George Mason (cited hereafter as MASON PAPERS), 1970, University of North Carolina Press, Chapel Hill, Vol. I, pp. 210-211.
10 Paul H. Smith, ed., Letters of Delegates to Congress, 1774-1789, 1976, Library of Congress, Washington DC, Vol. I, p.306. See also FOUNDERS’ VIEW, p. 48 for related discussion.
11 MASON PAPERS, Vol. I, p. 212.
12 Peter Force, American Archives, 1972, (reprint of 1837 Washington DC edition), Johnson Reprint Corporation, New York, 4th Series, Vol. 1, p. 1032.
13 Extended excerpt from Mason’s Fairfax County Militia Plan: "Threatened with the Destruction of our antient Laws & Liberty, and the Loss of all that is dear to British Subjects & Freemen, justly alarmed with the Prospect of impending Ruin, - firmly determined, at the hazard of our Lives, to transmit to our Children & Posterity those sacred Rights to which ourselves were born; and thoroughly convinced that a well regulated Militia, composed of the Gentlemen, Freeholders, and other Freemen, is the natural Strength and only safe & stable security of a free Government, & that such Militia will relieve our Mother Country from any Expense in our Protection and Defence, will obviate the Pretence of a necessity for taxing us on that account, and render it unnecessary to keep any standing Army (ever dangerous to liberty) in this Colony, WE the Subscribers, Inhabitants of Fairfax County, have freely & voluntarily agreed, & hereby do agree & solemnly promise, to enroll & embody ourselves into a Militia for this County, intended to consist of all the able-bodied Freemen from eighteen to fifty Years of Age, under Officers of their own Choice; [here follows description of organization and officers – ed.]. And such of us have, or can procure Riphel guns, & understand the use of them, will be ready to form a Company of Marksmen or Light-Infantry for the said Regiment, chusing our own Officers as aforesaid, & distinguishing our Dress, when we are upon Duty, from that of the other Companies, by painted Hunting-Shirts and Indian Boots, or Caps, as shall be found most convenient, - Which Regulation & Establishment is to be preserved & continued, until a regular and proper Militia Law for the Defence of the Country shall be enacted by the Legislature of this Colony. And we do Each of us, for ourselves respectively, promise and engage to keep a good Fire-lock in proper Order, & to furnish Ourselves as soon as possible with, & always keep by us, one Pound of Gunpowder, four Pounds of Lead, one Dozen Gun-Flints, & a pair of Bullet-Moulds, with a Cartouch Box, or powder-horn, and Bag for Balls. That we will use our best Endeavours to perfect ourselves in the Military Exercise & Discipline, & therefore will pay due Obedience to our officers, & regularly attend such private and general Musters as they shall appoint. And that we will always hold ourselves in Readiness, in Case of Necessity, Hostile-Invasion, or real Danger, to defend & preserve to the utmost of our Power, our Religion, the Laws of our Country, & the just Rights & Privileges of our fellow-Subjects, our Posterity, & ourselves, upon the Principles of the English Constitution." MASON PAPERS, Vol. I, pp. 215-216.
14 Hostilities began on April 19, 1775 in Massachusetts, and Virginia's first state constitution was adopted June, 29, 1776, prior to the Declaration of Independence.
15 FOUNDERS VIEW, p.48.
16 See FOUNDERS’ VIEW, pp. 36-38, 53. The earliest Virginia action involving an independent company was taken by the Hanover Volunteers led by Patrick Henry. Henry understood that Americans would "fly to Arms to defend themselves" to prevent from being disarmed. With approval of the county committee, the Volunteers marched to retrieve publicly owned gunpowder that had been removed clandestinely from the colony's magazine and transferred to a ship under the royal governor's military control. The powder seizure occurred prior to knowledge of hostilities in Massachusetts as did Henry's planning. However, the Hanover Volunteer's march occurred shortly after it was known that war had started in New England. Henry failed to obtain the seized powder, but he was able to obtain payment from the colony's receiver-general to replace it. See Robert Douthat Meade, Patrick Henry:Practical Revolutionary, 1969, Lippincott, Philadelphia, pp. 44-53.
17 The heading of Virginia's 1776 Declaration of Rights stated: "A declaration of rights made by the representatives of the good people of Virginia, assembled in full and fee Convention; which rights do pertain to them, and their posterity, as the basis and foundation of government." ORIGIN, p. 747.
18 An armed population was the clearly understood foundation of Virginia's 1776 constitution as Edmund Randolph's later comment regarding an argument presented by supporters of the Declaration of Rights in Virginia's 1776 convention reveals: "that with arms in our hands, asserting the general rights of man, we ought not to be too nice and too much restricted in the delineation of them;" from “Edmund Randolph's Essay on the Revolutionary History of Virginia,” Virginia Magazine of History and Biography, Vol. XLIV, #1, Jan. 1936, p. 45.
19 ORIGIN, p. 754.
20 FOUNDERS’ VIEW, pp. 54-55.
21 As the Revolutionary Era approached after the French and Indian War, Royal governors tended not to enforce such laws where still in effect. See FOUNDERS’ VIEW, pp. 39-42 relative to the situation in Massachusetts.
22 See FOUNDERS’ VIEW, pp. 15-25 for overview of defensive associating in colonial Pennsylvania. During its entire colonial history, there was only one Pennsylvania voluntary organized defense law, which was in effect for less than a year in 1755-1756. Men associating under the law were referred to as militia, but there were major differences between Pennsylvania's law authorizing entirely voluntary defensive associations and mandatory militia laws of other colonies.
23 FOUNDERS’ VIEW, pp. 75-77.
24 ORIGIN, pp. 747, 752.
25 ORIGIN, p. 773. See FOUNDERS’ VIEW, p. 71 for historical details related to this addition.
26 See Appendix I for a complete list of Revolutionary Era Mason Triads. See FOUNDERS’ VIEW, pp. 63-74 for further discussion.
27 Only New Hampshire dropped the "free" reference before “state”. See Appendix I, item 8.
28 David Kopel and Clayton Cramer provide this explanation of the three parts of Pennsylvania’s 1776 Declaration of Rights Section XIII (Mason Triad): “Article XIII addresses the distribution of the power of force in a free society. Clause one ensures that the government will not have a monopoly of force, and further ensures that the lawful government can be forcefully defended and protected by the people as a whole. Clause two limits the government’s ability to create a separate power of force. Clause three ensures that, to the limited extent that government can have its own power of force, that power will be controlled by the people, acting through their civil representatives.” See their article, “The Keystone of the Second Amendment: Quakers, The Pennsylvania Constitution, and the Questionable Scholarship of Nathan Kozuskanich,” Widener Law Journal, 2010, available on the web at: http://ssrn.com/abstract=1502925
29 Josiah Quincy, Memoir of the Life of Josiah Quincy, Jun., 1971, (reprint of 1826 Boston edition), DaCapo Press, New York, pp. 413, 397. See FOUNDERS’ VIEW, pp. 31-33 for discussion of Quincy’s tract. A point that has caused confusion in modern discussions has been the tendency to view well regulated militia references in state bill of rights Mason Triads as part of the subordinated military mentioned in the final triad part. This was not the period understanding. The military consisted of armed forces employed in the service of the government. Militia were always understood as civilians except when employed in government service during actual emergencies. Mason’s original triad makes clear the well regulated militia reference was to “the body of the people” rather than to a government employed force. Quincy’s Observations also make clear he was referring to the people in well regulated militia references, not to a government employed force. His remarks resulted from and were directed against government troops in Boston. The body of the people, including all the able-bodied free men, were not the military, they were the men composing the civil population. The militia, including all the free able-bodied men, were often equated with the people in America.
30 ORIGIN, p. 12. See FOUNDERS’ VIEW, pp. 82-83 for discussion.
31 FOUNDERS’ VIEW, pp. 88-89.
32 John P. Kaminski et al, eds., The Documentary History of the Ratification of the Constitution (cited hereafter as DHRC), 1988, State Historical Society of Wisconsin, Madison, Vol. VIII, p. 40.
33 ORIGIN, pp. 34-35.
34 See FOUNDERS’ VIEW, pp. 91, 98 for details of Mason's contacts with and influence upon Pennsylvania's Antifederalist leaders.
35 The description from the preamble to the Virginia Ratifying Convention's proposed bill of rights. All of its provisions came from the declarations of rights of the states. See ORIGIN, p. 457.
36 See discussion of the Continental Congress' Declaration of the Causes and Necessity of Taking Up Arms, FOUNDERS’ VIEW, p. 58.
37 For an overview of Ratification Era Federalist and Antifederalist Mantras with some of the more prominent examples, see FOUNDERS’ VIEW, pp.92-111. For some specific Federalist Mantras, see ORIGIN, pp. 26, 40, 45, 57, 74, 100, 105, 190, 230, 234, 240, 275, 556, and 578. For specific Antifederalist Mantras, see ORIGIN, pp. 91, 131, 146, 151, 176, 178, 212, 260, 790, 331, 446, and 498.
38 Not every Federalist Mantra was directly linked to concerns about military powers. For example, see Zachariah Johnson's Virginia Ratifying Convention mantra, which appears in the midst of a speech denying the possibility of religious establishments, ORIGIN, p. 452. Some Antifederalist Mantras were specifically made in support of a particular military powers amendment. See George Mason's double disarming argument calling for an amendment that "in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the state governments might arm and discipline them." ORIGIN, pp. 401-402. The amendment later prepared for this purpose was proposal #11 in Virginia's list of "other" amendments. ORIGIN, p. 460. This militia powers amendment had nothing to do with existing bill of rights protections nor with Virginia's Second Amendment predecessor, which was #17 in its “bill of rights” list. The rights list consisted solely of protections taken virtually verbatim from existing state bill of rights restrictions on state governments. ORIGIN, pp. 457-459. Confusion and conflation of militia powers arguments and the Second Amendment predecessor of Virginia is evident in many modern discussions about Second Amendment history and intent, even those originating with professional historians. For such conflation in the historians’ Heller brief, see David E. Young, “Root Causes of Never-Ending Second Amendment Dispute, Part 18”:
39 ORIGIN, pp. 197-198. Note that The Federalist #29 was printed as #35 in the early newspaper editions.
40 Hamilton wrote about "the degree of perfection [in military exercises] which would intitle them to the character of a well-regulated militia". ORIGIN, p. 197.
41 See FOUNDERS’ VIEW, pp. 7-15, 21-22, 25-26, and 31-32 for discussion of the earlier usage.
42 See ORIGIN for extensive Ratification Era documentation.
43 See Appendix II for Mason Triads from 1-Pennsylvania Minority, 4-Virginia, 5-New York, 6-North Carolina, and 7-Rhode Island.
44 See Appendix II for proposals of 2 - Samuel Adams, and 3 - New Hampshire.
45 See Appendix I, item 2 for the 1776 Pennsylvania Mason Triad.
46 See Appendix II, item 1 for the complete 1787 Pennsylvania Minority proposed Mason Triad.
47 See ORIGIN, pp. 150-153 for all 15 proposals and the convention vote. The militia powers amendment returned all militia powers back to the state governments and had nothing to do with the Mason Triad based Second Amendment predecessor, which was developed from a state government limiting bill of rights provision.
48 For the Dissent, see ORIGIN, pp. 154-175. For its influence during the Ratification Era, see DHRC, Vol. XV, pp. 9-13.
49 Adams, unhappy with a Federalist brokered deal that did not include core bill of rights protections, proposed addition of his bill of rights proposal to a Federalist prepared 10th Amendment predecessor, which Adams viewed as the summary of a bill of rights. The 9 Federalist proposed amendments, including 5th and 7th Amendment protections that were necessary to achieve ratification were adopted. See ORIGIN, p. 260. Also see FOUNDERS’ VIEW, pp. 113-119 for a more detailed examination of Samuel Adams' failed bill of rights proposals.
50 The Maryland Convention never voted on final disposition of amendments that were discussed in a small committee after ratification because no report was made by the committee, which had agreed to 13 proposed amendments and rejected 15. Bill of rights amendments were addressed in the committee, but none were Second Amendment predecessors. See ORIGIN, pp. 356-361 for details.
51 ORIGIN, p. 446. The provisions were in reverse order from previous triads and were separated by intervening Third and First Amendment related protections.
52 See ORIGIN, pp. 388-390 for Mason's 1788 proposed Bill of Rights. See ORIGIN, pp. 457-459 for the 1788 Virginia Ratifying Convention proposed Bill of Rights.
53 Appendix II, Item 4.
54 ORIGIN, p. 390.
55 ORIGIN, pp. 503-509. The resolution refusing ratification stated: "Resolved, That a declaration of rights, asserting and securing from encroachment the great principles of civil and religious liberty, and the unalienable rights of the people, together with amendments to the most ambiguous and exceptionable parts of the said Constitution of government, ought to be laid before Congress, and the convention of the states that shall or may be called for the purpose of amending the said Constitution, for their consideration, previous to the ratification of the Constitution aforesaid on the part of the state of North Carolina."
56 See FOUNDERS’ VIEW, pp. 132-134. Within the New York Ratification document, the delegates declared "the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution". ORIGIN, p. 483.
57 See items 4, 5, and 6 in Appendix II. New York added protection against militia being subject to martial law other than during war, rebellion, or insurrection between the two-clause Second Amendment predecessor and the final two parts of its Mason Triad. This added provision later became part of the 5th Amendment.
58 ORIGIN, p. 694.
59 ORIGIN, pp. 654-656.
60 ORIGIN, p. 679.
61 Notably missing from Madison’s proposal was a militia powers amendment, which was #11 in Virginia’s “other” amendments list. Madison’s writings make clear that he had no intention of altering Article I, Section 8 powers, which the militia powers amendment would have done. See FOUNDERS’ VIEW, pp. 165-174 extensive information on Madison’s support for bill of rights amendments and lack of support for major changes of the Constitution.
62 See Appendix I, 3-Delaware, 4-Maryland, 7 - Massachusetts, and 8 – New Hampshire.
63 See ORIGIN, pp. 275-277 for Tench Coxe’s Federalist Mantra, one of the most extensive and explicit written during the period. Coxe related the discussion in this text to that in The Federalist #45, a copy of which he had received directly from its author, James Madison. See also the list of Federalist Mantra’s in note number 37, above.
64 Madison’s proposed location of insertion was “[t]hat in Article 1st, section 9, between clauses 3 and 4, be inserted these clauses”. See ORIGIN, p. 654.
65 ORIGIN, pp. 654-655.
66 FOUNDERS’ VIEW, p. 63.
67 “A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, . . ." ORIGIN, p. 680.
68 “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 Senate also removed a conscientious objector clause Madison added to his original two-clause Second Amendment predecessor that was retained throughout House consideration. ORIGIN, p. 712.
69 See FOUNDERS’ VIEW, pp. 212-214 on lack of a Bill of Rights title.
70 Standing army provisions are not found in a number of state bills of rights formed after the early 1800’s. Such forces were prohibited in time of peace by the U.S. Constitution.
71 Only NY has no civil control of the military provision. The seven states adopting full Mason Triads since 1971 were Virginia, North Carolina, New Hampshire, Nevada, West Virginia, Delaware, and Maine. Mason Triad parts, which were closely linked in triads of the Founding Era, appear in different order and in widely separated bill of rights sections in many more modern state bills of rights.
72 Only New York, New Jersey, Minnesota, Iowa, and California have no Second Amendment related protection. For an extensive 2006 listing of provisions, see Eugene Volokh, “State Constitutional Rights to Keep and Bear Arms,” Texas Review of Law & Politics:
73 The sixteen states updating Second Amendment language included Michigan, Illinois, Virginia, North Carolina, New Mexico, Louisiana, Idaho, New Hampshire, Nevada, North Dakota, Utah, West Virginia, Delaware, Nebraska, Florida, and Wisconsin.
74 The historians’ Heller brief fails to make any link between the Second Amendment and its state bill of rights related developmental history, which is documented above. For a greatly condensed op-ed criticism of the brief’s many historical errors and omissions, see David Young, “Why DC’s Gun Law is Unconstitutional,” History News Network: http://hnn.us/articles/47238.html