Mason, Madison, and Militias: A Progressive for a Right to Bear Arms

Mason, Madison, and Militias: A Progressive for a Right to Bear Arms 

By Ross Raffin, published May, 2010

“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” – Second Amendment 

A Democrat who argues for a right to bear arms is treated similarly to a Republican who argues for a right to an abortion. Although there is no inherent contradiction in either position, zealots decry any deviation from the orthodox party platform. However, arguing that the Second Amendment refers to an individual right does not mean the gun control debate is over. The fact that Americans have a right to bear arms does not mean they have a right to bear arms in any way they choose. Strict scrutiny, the highest standard available for reviewing the constitutionality of statutes, is far from incompatible with the goals of many gun control advocates. While an individual right to bear arms does not necessarily imply a strict scrutiny standard, this worst case scenario for gun control advocates is illustrative of how to handle Second Amendment regulation, especially after District of Columbia v. Heller (2008) which definitively ruled that there is an individual Second Amendment right. Problems of stare decisis notwithstanding, strict scrutiny would only apply to gun control regulations which do not meet a compelling state interest, are not narrowly tailored for their purpose, or have a less restrictive alternative. While this may be less palatable to some than the traditional rational basis standard, a historical interpretation coupled with a review of literature such as the Federalist and Anti-Federalist papers reveal a convincing conclusion: the Second Amendment refers to an individual right. However, most mainstream arguments on both sides, including those used by the majority and dissenting opinions in Heller, misrepresent the second amendment’s origin in some way. Conservatives rely too often on a faulty connection involving the English Bill of Rights while liberals tend to confuse Anti-Federalist issues with militia powers and the keeping of arms.

The Bill of Rights in Context

The first myth to dispense with is the bipartisan veneration of the Bill of Rights as a God-given appendage to the Constitution. The framers (minus several dissenters) and other Federalists vehemently argued that a Bill of Rights was unnecessary. The Anti-Federalists exploited this apparent weakness by methodically attacking nearly every clause in the Constitution as a tyrannical mandate subject to no constraints. In order to outmaneuver the Anti-Federalists at the ratifying conventions, the Federalists compiled a list of the least restrictive Anti-Federalist demands and promised to have them passed through the first Congress when the Constitution was ratified. The predecessor to Madison’s Second Amendment came from dissenter George Mason’s proposals at the 1788 Virginia Ratifying Convention. In Section 17 of the proposal, Mason combined, word for word, a portion of the Massachusetts’ Declaration of Rights stating that the people have a right “to keep and to bear arms” with Article 13 from Virginia’s Declaration of Rights (which he also helped write) concerning a well-regulated militia as the defense against a standing army. 

These Anti-Federalist concerns were not simply theoretical; they were shaped by precedent, both from early England and, more importantly, from recent events. Standing armies, an army supplied by the government during a time of peace, were the main tool monarchs used to impose their will in 17th century England. In order to counter an uprising of armed men, Catholic King Charles II used the Militia Act of 1661 and the Game Act of 1671 to individually disarm his Protestant enemies. After King James II was overthrown in the Glorious Revolution of 1688, the winners reacted to the Militia Act in the English Bill of Rights, specifically by enumerating the right “[t]hat the subjects which are Protestant may have arms for their defense suitable to their conditions and as allowed by law.” 

Conservatives tend to overreact to this superficially obvious analogue to the second amendment. In reality, the English Bill of Rights only protected individuals from the crown, not from the Parliament. The American conception of constitutional rights drastically differed from the English conception. For this reason, when Madison introduced the Bill of Rights in Congress, he specifically said the reasoning behind the English Bill of Rights is “inapplicable.”

The founders did not need to look more than a decade back in order to find a much more relevant example of the danger of standing armies. On September 1st, 1774, General Thomas Gage had a secret military detail seize publicly owned gun powder in the Charlestown powder house. By October 19th, 1774, the British had halted all arms transportation through Boston. To put this in perspective, when the Governor of Virginia seized some public powder and had it placed on a British vessel, Patrick Henry lead a historic march to obtain possession or reimbursement. This explains why Massachusetts was the only state at the time whose declaration of rights included “keeping” as well as “bearing” arms. It also explains why Mason chose to borrow specifically from Massachusetts and not other states declarations with “bear arms” language.

Mason on Militias and Arms

The main misconception on the liberal side involves the difference between Anti-Federalist concerns with the federal militia power and Federalist concerns maintaining pre-existing natural rights. Anti-Federalists worried that Article 1, Section 8 gave the Federal government the ability the destroy state militias through lack of funding and disuse. George Mason debated this issue at the Virginia Ratifying Convention on June 14, 1788 and specifically asked 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.” Contrary to the arguments of many “collective right” advocates, Mason’s solution for this was not Section 17 of the 1788 Virginia Ratifying Convention proposal. Mason’s militia power amendment found voice in Virginia’s proposed Constitutional Amendment 11, that “each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same.” 

A second worry, which was debated heavily on June 16, was that because the Federal Constitution overruled State Constitutions, the Federal Constitution would also overrule the bill of rights passed by states. This was when Patrick Henry made several of his more famous witticisms, including saying that the Federalists “have a bill of rights [in Virginia] to defend [them] against the state government, which is bereaved of all power, and yet [they] have none against Congress, though in full and exclusive possession of all power.” Henry opened the discussion by reading the eighth to thirteenth articles of Virginia’s declaration of rights which were later incorporated as the first eight amendments of the U.S. Bill of Rights. Recall that the thirteenth article of the Virginia Declaration of Rights is Mason’s writing on a well-regulated militia. While Anti-Federalist coalitions in only three of the ratifying conventions, Virginia, Pennsylvania, and North Carolina, proposed a militia powers amendment, every single ratifying convention contained a proposed right to keep arms. 

The Anti-Federalists at the Pennsylvanian Ratifying Convention followed the same reasoning as those at the Virginia convention. Their minority bill of rights, later printed as “Reasons of Dissent,” included “that the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.” This immediately dispels the notion that “bear arms” refers only militia related action, a stance held by several amicus briefs in both Heller and its due process-based sequel, McDonald v. City of Chicago. 

The Heller majority, written by Justice Anton Scalia, made the strangely obvious mistake of ignoring that the English Bill of Rights did not limit the legislator. Madison commented that the bill had “gone no farther than to raise a barrier against the power of the Crown; the power of the Legislature is left altogether indefinite.” The Stevens dissent, on the other hand, confused Anti-Federalist militia power concerns with reproducing state-guaranteed individual rights on a federal level. While the Heller majority is closer to the truth than the dissent, the gap between common historical interpretations and both Heller opinions were staggering at times.

Rights and Regulation

The belief that the Second Amendment refers to individual rights does not imply a massive reversal in gun control. In a worst case scenario, the Constitutional implication would be that any law concerning the regulation of keeping and bearing arms must meet a higher standard of review than normal, known as strict scrutiny. In order to pass strict scrutiny, a law must have a compelling government interest, be narrowly tailored to the situation, and have no less restrictive alternative. Under rational basis, the alternative to strict scrutiny, the court would defer to the legislator if there is some reasonable possible rationale for the law.

The switch from rational basis to strict scrutiny would have a continuum of effects. At one extreme, the banning ownership of bazookas would pass strict scrutiny due to the immense government interest and narrowly tailored construction. At the other end, cases like District of Columbia v. Heller would result in repealing gun control laws which are found to be overly restrictive or not narrowly tailored. Unlike freedom of speech or religion, there is always a compelling state interest when gun control is involved; the main challenges will come from regulations being considered unnecessarily restrictive or overly broad. The interaction of regulation and the Second Amendment individual right to bear arms, not the existence of an individual right to bear arms, is the rightful arena of debate.