Militia, Standing Armies, and the Second Amendment

“The right of a citizen to keep and bear arms has justly been considered the palladium of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”
—Joseph Story, 1833

It is depressing to a historian, on the occasion of the Bicentennial, that considerable mythology should still surround so prominent an event as the American Revolution. There are two interlocking myths that bear directly on the four issues that I wish to examine: the fear of standing armies, the abuse of power by the state, the role of the militia prior to the Revolution as well as in the American victory, and the background of the adoption of the Second Amendment to the Constitution.

The first of the two myths, and probably the most dangerous and persistent, is the notion that the Revolution was the work of only a minority of the American people. Perpetuated in numerous recent books, articles, newspaper columns, and television programs such as Alistair Cooke’s series “America,” the notion has gained ground since it was introduced in 1902 and is based upon a letter of John Adams supposedly estimating that onethird of the Americans were for the Revolution, a third opposed it, and a third were neutral.

Fortunately, as several historians have pointed out, Adams’ letter has been misread. A close examination of that letter to James Lloyd, dated January 1813, reveals that he was talking about American opinion of the French Revolution in the 1790s. Certainly, it does no credit to the dominant intellectual establishment in this country, with its obvious elite bias, that the myth continues to be put over on the great majority of the American people.

It was the great American physician, historian, legislator, and revolutionary David Ramsay who, in 1789, referred to the Revolution as a “people’s war.” John Adams, who shared that view, as did all of the Founding Fathers, actually estimated that over two-thirds were pro-American.

In several forthcoming articles I shall seek to show the massive American support in the events leading up to the war and in the war itself. There is not space here to detail that story. Much of it is so well known—the massive protests against the Stamp Act, the tremendous drop in the importation of English products, to give only two examples—that one wonders how the minority myth could have started in the first place. Perhaps the best piece of evidence with respect to the period leading up to the war, which can best be appreciated by lawyers, is that no American juries could be selected that would convict their countrymen of violations of the increasingly arbitrary British legislation. The government was thus driven to trying to place more kinds of cases in their Vice Admiralty courts, which had no juries, and in the end to a virtual suspension of that precious right.

The question of majority support for the war itself leads us into the area of the second, interrelated myth, and to the question of an armed militia. The myth is that the American Revolution was a typical, 18th-century war fought by regular armies and won by the Americans only because of the massive aid of French materials, money, and soldiers.

As we reflect upon the views of Americans of or near the revolutionary generation—such as John Adams, David Ramsay, or Joseph Story—as compared with the views of many later historians, two polarities appear. The early view saw the American Revolution as a majoritarian people’s war, in which the militia played an important role, while the latter view introduces the notion of a war fought and won by a (minority-controlled) regular army. In its purest form, the latter view implies that it was the French intervention that made possible the triumph of a revolutionary minority.

For the last several years, however, very much influenced by the American involvement in Vietnam, a considerable reassessment of the American Revolution has been underway. I think it fair to say that the reassessment vindicates the views of those men, such as Ramsay, Adams, and Story, who were closer to the Revolution. For those who wish to read of the American majority prior to the fighting, I recommend Murray N. Rothbard, Advance to Revolution, 1760–1775, which is volume three of Conceived in Liberty; Merrill Jensen, The Founding of a Nation, 1763–1776, and The American Revolution Within AmericaThe American Revolution; and Bernhard Knollenberg, The Growth of the American Revolution, 1766–1775. On the war as a revolutionary people’s war, there is Page Smith’s magnificent two volume A New Age Now Begins; John Shy’s perceptive essay, “The American Revolution: The Military Conflict Considered as a Revolutionary War,” in Stephen G. Kurtz and James H. Hutson, editors, Essays on the American Revolution; James W. Pohl, “The American Revolution and the Vietnamese War: Pertinent Military Analogies,” The History Teacher, volume seven, February 1974; and Shy’s forthcoming A People Numerous and Armed, the title of which is self explanatory, and which promises to be of major significance.

The kind of war the Americans fought is then very much related to the question of support for the Revolution. Those who think in terms of a war of regular forces have quite rightly pointed out the lack of support that was given to Washington’s Continental Army. But that does not mean that Americans did not support the war. Two other explanations are possible: that the logistics of building a regular army from scratch and keeping it supplied were rather formidable for a young nation in the throes of establishing a government, and/or many Americans were engaged in fighting a different and perhaps much less publicized kind of war.

The logic of my argument about the Revolution, people’s war, and an armed citizen’s militia is quite simple. A people’s revolutionary guerrilla war can only be waged successfully by a society that shares on a massive scale a common ideological commitment. That the Americans fought precisely such a war is the best indication of the massive, majoritarian support for the war. They were able to do so, however, because of one fact—which I consider the most important single fact about the Revolution, and which alone made a protest and a fight to defend their liberties possible—the almost universal ownership of firearms, expertise in their usage, and membership in a citizen’s militia, which characterized the American scene. Let me trace very briefly how that came about, the role of the militia in the war, and how that role came to be overlooked despite its embodiment in both the Second and Third Amendments to the Constitution.

As Joseph Story and others understood, the tradition of the citizen’s militia was intimately related to the experiences of English libertarians in the English Revolution and the Glorious Revolution of 1688. The Parliamentarians came to appreciate that the King, as the head of the state, could only be successfully opposed if his control of whatever standing army that existed for national defense were somehow weakened. This was done in two ways. The first was fiscal. Parliament had to gather each year to pass the Mutiny Act if there were to be funds for the army. It was because of this tradition that the Founders put into the Constitution that no appropriation for the army may be for a longer term than two years.

The second way to cope with the peril to liberty of a standing army is to counter its existence with an armed citizen’s militia which stands outside of the control of the government. That was the constant theme of the Whig pamphleteers from the 1690s on, as they sought to check the power of government. Indeed, one of the important grievances that produced the Glorious Revolution had been the King’s attempt to disarm the Protestants; the subsequent English Bill of Rights, forced on King William, had specifically guaranteed their right to arms. And, as Bernard Bailyn has shown in The Ideological Origins of the American Revolution, those Whig pamphleteers, such as John Trenchard and Thomas Gordon, were among the foremost intellectual influences on the Americans. The latter writers, particularly in their Cato’s Letters, a series widely reprinted in the colonies, argued that the defense of the realm was best entrusted to the armed body of the citizenry, rather than a standing army. They argued both that this was a superior form of national defense and that it was the best means of protecting the people’s liberties against the state’s usurpation:

“[W]hen a Tyrant’s Army is beaten, his Country is conquered: He has no Resource; his Subjects having neither Arms…nor Reason to fight for him.”

“[A]nd therefore it is fit that Mankind should know…that his Majesty can be defended against them…without Standing Armies; which would make him formidable only to his People….”

“When the People are easy and satisfied, the whole Kingdom is [the King’s] Army.”

In his Commentaries, William Blackstone listed the right of bearing arms as one of those rights—along with the right of petition, the right to apply to the courts, and the limitations on the King’s prerogative—which protected the three great primary common-law rights of personal security, personal liberty, and private property.

So deep was this “prudent jealousy entertained by the people of standing armies” that the major debate over the plan of national defense contained in the Constitution stemmed from the demands of many that a peacetime army should be forbidden entirely. To answer this, the authors of the Federalist argued not only for the utility of a small, permanent army but, further, that the militia would always be great enough to overcome a usurpation of the people’s liberties by the national government. Madison, in No. 46, for example, argues that the standing army which the nation could support would not exceed twentyfive or thirty thousand men and could never conquer the militia, “near half a million citizens with arms in their hands . . . fighting for their common liberties. . . . ” Among the numerous advantages of the militias Madison refers to “the advantage of being armed, which the Americans possess over the people of almost every other nation.”

This notion of the military force of the nation resting upon the whole body of the people was clearly in the mind of George Mason, “Father of the Bill of Rights,” who said, in 1788, “I ask who are the militia? They consist now of the whole people. . . . ”

The founding generation was so firm in their commitment to an armed citizenry that their adoption of the Second Amendment in 1791 was not deterred by Shays’s Rebellion, an uprising of armed veterans, a “militia revolt,” in 1786–87.

The outlook of those Anglo-American Whigs has been summarized by the military historian Richard H. Kohn: “The militia-yeomen and landholders armed and trained, men with a stake in society and a desire to preserve liberty, men who would never seize power or overturn legitimate political forms unless they were tyrannical—was the only safe and sensible military institution.” The other part of the question was nicely put by Samuel Adams in 1776: “A standing Army, however necessary it may be at some times, is always dangerous to the Liberties of the People…. Such a Power should be watched with a jealous eye.”

By the time of the French and Indian War an unhealthy tendency had already set in, at least from the standpoint of the original purpose of the militia as a safeguard outside of the state power, of attempting to formalize the citizen’s militia into a state militia, its use as an instrument of state policy, and the introduction of conscription. Due to a lack of enthusiasm for Britain’s expansionist designs on the Ohio Valley, the militia had been a rather recalcitrant participant in the French and Indian War, an experience that soured Washington on its military usefulness.

This unwillingness of the militia to leave local areas to pursue distant wars or unpopular causes, which Alexander Hamilton had earlier presented as a virtue in the Federalist No. 29, later returned to plague him when he sought to have state militia sent against the Whiskey Rebels. Popular sentiment for the dissident farmers during that rebellion in 1794 forced Pennsylvania to resort to a draft to raise troops to enforce the tax.

In truth, Washington never cared much for the militia. His letters in the American Revolution echo those of the French and Indian War: The militia was lazy, it would not obey orders, and it showed scant respect for its officers. His comments were very much like those of British officers, who, based upon their experiences with the Americans in the French and Indian War, felt they could not conduct much of a war against the British. What was really at issue here was that these officers wished a disciplined, regular army that would engage in an aggressive, even imperial, offensive campaign in traditional formations, rather than a citizen’s force, which cared for little except to defend its own locality from invasion by an outside force.

Almost by accident Washington arrived at his strategy to “protract” the war as a means of eventual victory, a strategy Mao Tse-tung would later also adopt. General Nathaniel Greene put it succinctly: “We fight, get beat, rise, and fight again.” Washington’s aide, young Alexander Hamilton, expressed the strategy most fully: “It may be asked, if, to avoid a general engagement, we give up objects of the first importance, what is to hinder the enemy from carrying every important point, and ruining us? My answer is, that our hopes are not placed in any particular city, or spot of ground, but in preserving a good army, furnished with proper necessities, and waste and defeat the enemy by piecemeal.”

To appreciate the extent to which that apparent stalemate was actually an American victory, we have to examine the war from the standpoint of the British and what definition, if any, they had of what “victory” might consist. Their first assumptions had been that a few American agitators were stirring things up, but the reports of General Thomas Gage gradually made it clear that most of New England was in arms against them. After the swarm of militiamen at Lexington and Concord, and the relatively orthodox battle at Breed’s Hill, Washington brought cannon to Dorchester Heights and the British decided to evacuate Boston. Apart from some raiding parties from the sea, never after Concord did the British army venture any distance into the New England countryside. Therefore, the British were never anywhere near conquering that “hot-bed” of rebellion that remained for the whole war under the control of the militia.

On the other hand, as Thomas Paine noted, “It is distressing to see an enemy advancing into a country, but it is the only place in which we can beat them.” It was the American militia coming from all over the countryside that insured the encirclement and eventual surrender of the forces in upstate New York under General Burgoyne. Late in the war the Hessian forces ventured out of New York City into New Jersey in quest of that perpetual mirage of British fantasies, the large force of Loyalists somewhere out there in the countryside waiting to be liberated. Instead, they came under the virtually unceasing attack of skirmishing American militia and decided it was the better part of valor to retreat to the city.

There was also for a time the British-Hessian enclave at Philadelphia where the Germans admitted that “the Americans are bold, unyielding, and fearless, . . . and we cannot block their resources.” It took more than three thousand British troops to try to protect the wagon trains of supplies traveling the distance of 15 miles from Chester to Philadelphia from the attacks of American militia, and even then many of them did not get through. Again, the British ended by evacuating the city.

The end of the war, of course, came in the South, another area where the myth of Loyalist legions in the interior was repeated. It was in the South during Lord Cornwallis’s long meandering march up and down that the American militia began to come into its own. The Americans won only one battle of any consequence, Cowpens, but they so bled the British by their constant harassment that the exploits of Sumter, Pickens, Morgan, and Marion are prime examples of guerrilla warfare.

Every people’s revolutionary war is ended by the triumph of their regular forces as the struggle nears its successful conclusion, but that is the result and not the cause of victory. People’s war is fundamentally political, and it was the militia that gave the Americans virtually the control of the whole country and that insured the legitimacy of the revolutionary government. British foraging parties were under constant harassment, and British units seldom went out after dark in less than battalion strength. As John Shy suggests, it was the militia that was the sand in the gears of the British pacification machine.

The regular American army, as well as segments of a rag-tag militia, accepted the surrender at Yorktown. The existence of that army should never be allowed to obscure the large reason for the British defeat which was that they could never control, let alone win over, a population of armed militia that was the foundation of support for the American government. The British military historian Eric Robson acknowledged: “Restricted to little more than the ground they stood on, the British increasingly found subsistence a matter of considerable difficulty.” That was not the result of Washington’s valiant little army camped at Valley Forge or for so many years across the Hudson from the British in New York City, but rather the American guerrilla militia that from local homes and farms made life in the British Army a living hell. Every small detachment was legitimateprey for the Americans. Historians will never know how many of these small skirmishes there were, but only glimpse them all over the landscape, realizing that they form the real reason for the low British morale and eventual defeat.

Thus we see that the experiences of the Revolutionary War confirmed in the minds of the Founders the teachings of the Whigs: An armed citizenry was both a check on domestic tyranny and the most desirable form of national defense. It was for the security of a free state from these perils that the Founders sought the protection of a well-regulated militia.