Lawsonline™ Legal Topics

Citizen-Soldiers, Part I: Creating a well-regulated Militia

In 1792, the first national legislation detailing the organization of the state militias was enacted after years of debate. Questions of local vs central authority, local need vs uniformity, required service vs substitution, and general militia vs select militia were just a few of the recurring issues that challenged the new country. Republican ideals touted the idea of a citizen-militia who protected liberty and would make the reliance on a dangerous standing army obsolete. But efforts to use the militia on the frontier and in wars as military forces failed. These efforts removed the militia from its traditional localized function and inequalities of service, disorganization, and poor preparation only proved the militia was useless on the worst days or inconsistent on the best. So why did the Founders cling to this ideal? A long tradition of militias used effectively at the local level and political thought that searched for a real alternative to expensive and corruptible standing armies encouraged the Founders to try militia reform and revival. This Uniform Militia Act provided a compromise of several conflicting ideas about how to create the most efficient militia. However, in the short history of the militia below, it becomes evident that this Act did little more than officially recognize preexisting local practices. The lack of consequences for failing to comply with the Uniform Militia Act ultimately left the militias heavily localized, again relying on local initiative for their success.

The Militia in Colonial America

The use of the militia was already well established in Britain and considered an alternative to professional armies which were viewed as detrimental to a just state. Members of Parliament and many political writers praised the militia as defender of a free society where propertied citizens gladly performed their duty to take up arms to protect their country from foreign enemies and tyrants alike.² Since the 12th century freemen were expected to arm themselves in service to the crown and their local communities. They would also raise the "hue and cry" and act as the local police force helping the sheriff in times of need.³ However, the militia was largely localized and even royalty had to have support from local elites and an immediate national need to take the militias away from their communities. Once the crown mustered the militias they were often limited by the militias' term of service which averaged three months.⁴ These restrictions encouraged the crown’s preference for an army which eventually contributed to the growing list of grievances that spurred the English Civil War and Glorious Revolution.⁵ This combined ideological support for citizen-soldiers and the limitation of service in Britain influenced the structure of militias in the colonies.

Colonial militias were established on the same principles as in Britain but took on additional responsibilities in the early years of colonization. The earliest militias accentuated the martial duties of the men in the community to meet the challenges of settling on foreign soil. Every colony except Pennsylvania established militias during early settlement in the 17th century.⁶ Militiamen were expected to stay armed and be ready at a moment's notice, especially during times of heightened tension with Native Americans.⁷ Conflict was often localized with militiamen defending their communities directly rather than participating in distant battles. As they had done in Britain, militias were also expected to aid in the enforcement of laws and support civil authorities as needed. All men were expected to participate, especially during the infancy of these settlements when survival was often tenuous. Misbehavior was treated severely, often by corporal punishment, and precious supplies were not to be misused – in 1617 one could be condemned to a year of involuntary servitude for misusing gunpowder in Virginia.⁸ This need for an armed and ready militia relaxed as colonies gained a foothold and immediate threats decreased.

The growth and stability of the colonies shifted the duties of militias from the more militant needs of colonization towards the localized service more akin to their forerunners in Britain. Especially on the coast, militias focused on aiding civil authorities with local law enforcement and civic needs.⁹ Duties ranged from serving as night watch in the North to patrolling for runaway slaves in the South.¹⁰ Musters were festive community events that provided another means to reinforce local connections and hierarchy. Officers were often community leaders and politicking was common.¹¹ Like their counterpart in Britain, the militia's service was limited to its local community and once mustered militiamen could only be retained for two to three months. This impeded efforts to use militias in frontier battles further west and early efforts to organize militias under one military commander in the late 17th century were blocked by local civic leaders.¹² Because of these limitations on militia service, military commanders increasingly relied on volunteers to supplement their armies. Some of these volunteers were recruited directly from local militias who had some experience and training in arms.¹³ Furthermore, when local authorities were asked to raise troops for various conflicts and wars, they increasingly chose to enlist volunteers rather than muster the militia. Volunteers could serve longer terms and could be enticed by payment or impressed into service. Those impressed into service were generally the poor or criminals. For civic leaders, enlisting volunteers was a convenient way to rid the community of undesirables while meeting the quotas requested.¹⁴ In this way, the military use of the militia decreased and by the end of the 17th century the militias were primarily focused on local service.

During the first half of the 18th century active membership in the militia declined and their performance in the French and Indian War (1754–1763) challenged the idea that a militia force could replace a standing army. Militia numbers had generally decreased and the broad inclusion of all males in the community had shifted by this time. The militia reflected prejudices in society and militias that had once accepted free blacks shifted to accepting only white males during the early 18th century.¹⁵ African and Native Americans were still allowed to serve in some colonies but as unarmed laborers or fifers and drummers.¹⁶ At the onset of the French and Indian War several colonies attempted to revive and organize the militias. Governor Pownall published The Exercise for the Militia of the Province of the Massachusetts-Bay in 1758 which provided a guide for the militia based on an earlier British manual. He clearly called on citizens to embrace the responsibility and duty associated with militia service stating, "Every Man therefore that wishes his own Freedom, and thinks it is his Duty to defend that of his Country, should as he prides himself in being a Free Citizen, think it his truest Honour to be a Soldier Citizen."¹⁷ However, quotas were not easily met and volunteers were again used in many states. Impressments also remained an option and in Virginia this included all those, "found loitering and neglecting to labor for reasonable wages; all who run from their habitations, leaving wives or children without suitable means for their subsistence, and all other idle, vagrant, or dissolute persons, wandering abroad without betaking themselves to some lawful employment."¹⁸ Additionally, many would hire replacements rather than serve themselves.¹⁹ During the war the militia served with mixed success due in part to the disorganization of the war effort in general. Lord Loudoun attempted to combine the British Army and colonial forces after 1756 but met stiff resistance from colonial assemblies that traditionally controlled these forces.²⁰ Reports of the performance of militiamen also varied between accounts of bravery and cowardly desertions. Although some militiamen enlisted as volunteers, most remained within their own colonies and were not utilized until the fighting was close at hand.²¹

The Militia in the American Revolution

At the start of the American Revolution, the ideals behind the citizen-soldier was revived but was checked by the realities that gave the militia an inconsistent reputation. As tensions increased before the war, several states turned to preparing their militias in 1774.²² The resolution by the Maryland Convention in December of 1774 provides an example of the type of orders made to prepare the militia:

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 any Standing Army, (ever dangerous to liberty,) in this Province; and therefore it is recommended to such of the said inhabitants of this Province as are from sixteen to fifty years of age, to form themselves into Companies of sixty-eight men; to choose a Captain, two Lieutenants, an Ensign, four Sergeants, four Corporals, and one Drummer, for each Company, and use their utmost endeavours to make themselves masters of the military exercise; that each man be provided with a good Firelock, and Bayonet fitted thereon, half a pound of Powder, two pounds of Lead, and a Cartouch-Box or Powder-Horn, and Bag for Ball, and be in readiness to act on any emergency.²³

In 1777, the Articles of Confederation forbade, "any body of forces be kept up, by any State, in time of peace," but required that, "every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutred."²⁴ The hope was that the militia would be the force to retain during times of peace which could handle any sudden needs for defense while armies would only be maintained during the war.²⁵ However, many of the revolutionaries agreed that an army would be necessary to win the war.

During the Revolutionary War the limitations of relying on a militia force where quickly apparent. The Second Continental Congress approved the creation of an army in June 1775 but General George Washington requested an increase the following year after the supplemental forces from the militias proved unpredictable at best.²⁶ He complained of mass desertions and thought that militiamen, "accustomed to unbounded freedom, and no controul, cannot brook the Restraint which is indispensably necessary to the good order and Government of an Army." They were also not adequately prepared, challenged orders, and did not stay long enough to become a disciplined force. Additionally, Washington was worried their insubordination was spreading to the regular army and undermining the effectiveness of that force as well.²⁷ Washington also tied the rising expense of the war to the, "mistaken dependance upon Militia."

Can any thing (the exigency of the case indeed may justify it), be more destructive to the recruiting Service than giving 10 Dollars Bounty for Six Weeks Service of the Militia; who come in you cannot tell how, go, you cannot tell when; and act, you cannot tell where; consume your Provisions, exhaust your Stores, and leave you at last in a critical moment. These Sir are the Men I am to depend upon Ten days hence,--this is the Basis on which your Cause will and must for ever depend, till you get a large standing Army, sufficient of itself to oppose the Enemy.²⁸

In part, these problems stemmed from the fact that the militia system did not adjust or change for the war. Militiamen still served limited contracts from two to three months, did not have thorough or consistent training, were not always fully equipped and armed, expected to retain their right to be disciplined only under civil law rather than martial law, were loyal to their local officers rather than other military commanders, and had real concerns about the welfare of their families and livelihoods back home.

The concerns for home and livelihood influenced the makeup and behavior of the citizen soldiers during the Revolutionary War. Those with enough money could pay fines or hire substitutes to serve in their place when the militia was mustered. Washington believed the militiamen were justified in their complaint that those refusing to serve were often not held accountable. In 1777 he wrote that, "the Service falls partially upon a few Individuals, who complain, with great Justice, of risquing their lives in defence of those who upon your present plan do not even make a pecuniary Satisfaction for the exemption of their persons."²⁹ Additionally, the tendency to hire substitutes increased as the war continued and Washington suggested that substitution laws should be reformed since the practice only provided mercenaries who were a drain on the economy and a waste of money.³⁰ Farmers, artisans, laborers, and the poor could not pay the fines or hire replacements but risked sacrificing their livelihood when mustered for two to three months of service. In Philadelphia, militia officers listed the grievances of their men who returned after serving their community to find their livelihoods in jeopardy. They came back to a city where staple goods were sold at inflated prices, the raw materials needed for their trades had been bought up in bulk in their absence, and customers had switched to competitors who had not served in the militia.³¹ Similarly, farmers complained there were not enough laborers for them to hire to manage their farms during their absence.³² Long term service or training in camps when the threat was not immediate was not worth risking the well-being of their families back home. Additionally, militiamen would desert when their homes were threatened. For example, many of the Philadelphia militia deserted to be with their families during the occupation of the city by British troops from September 1777-June 1778. They did not face reprisals when they rejoined the militia after the incident which suggests that many of their fellow troops were sympathetic or at least understood the reasons behind their desertion.³³ These trends were not unique to Pennsylvania and many states found they could not meet their militia quotas for the war.³⁴

The militias' unpredictability on the battlefield and strong ties to home encouraged commanders to use militias only when the need was immediate and close. This did not mean these militiamen were less patriotic. Many enthusiastically mustered with whatever weapons they had available and provided much needed numbers. They were also more reliable when defending their communities - utilized best as Minutemen. The Militia also continued to provide local law enforcement and promoted the ideals behind the revolution in their communities. They helped to identify Loyalists, confiscate their arms, maintain boycotts, protect infrastructure, and promote the Patriot cause.³⁵ Finally, the militia again served as a recruiting pool. States would try to meet their quotas with volunteers from the militia who could commit to longer terms. These volunteers were generally the poorest residents who were enticed by the bonus, pressured to enroll or impressed into service.³⁶ In the end, there were enough positive stories of militia service that continued to give the Founders hope that the system could work if it was organized.

Organizing the Militia for the New Nation

After the Revolution, Americans continued to idealize the militia as the best alternative to a standing army which was seen as a hallmark of a tyrannical government. The militia could both protect society and maintain it: virtuous citizen-soldiers would rise up against government that threatened liberty but would also defend the state against groups that threatened law and order.³⁷ This ideal balance was not always easily achieved and determining when a state had overstepped or a group had become an unlawful insurrection was not always clear.

There were several ideas proposed for refining and organizing the new republic’s citizen-soldiers after the war. In 1783 a congressional committee chaired by Alexander Hamilton queried Washington together with other experienced military minds such as Friedeich von Steuben and Henry Knox, to determine the best way to organize the militia.³⁸ Washington’s response, "Sentiments on a Peace Establishment," recognized the importance of a general militia made up of every able-bodied man 18-50 years of age but also encouraged the formation of a select militia or "Continental Militia" of younger members 18-24 years of age who would be more consistently trained and form the earliest line of defense.³⁹ The committee also proposed several ideas to keep the militia a viable option. For example, they might limit service to those aged 18-24 so their duties would not disrupt their livelihoods. Like Washington, they also thought this would provide an opportunity to instruct the younger generation about their responsibility to their country and instill ideals of freedom and liberty. Steuben also suggested adding military academies to better prepare officers of the army and militia alike. Under his proposal only 10% of the graduates would serve in active military service while the other 90% would return to their civil lives and share their knowledge during militia training and muster days. However, Hamilton limited the central organization of the militia and rejected most of these ideas. His proposal to the Continental Congress suggested that the states should maintain militias for local needs but national concerns would be best answered by a small standing army. This proposal was shelved when Congress fled Philadelphia after being surrounded by soldiers demanding their back pay.⁴⁰

Despite these events, the ideas for military and militia reform continued to circulate. In an open letter Steuben reiterated the need for a small regular army of 4,000 to protect the new country’s borders, especially in the west, since using militiamen, "so distant from their homes, and so much more trying to patience than to valour, would be extremely embarrassing and expensive, and fall infinitely short of both the wishes and expectations of Government." He also argued that militiamen should receive more consistent training in a smaller select force called the "Established Militia" since he thought it a, "flattering but...mistaken idea that every Citizen should be a soldier." He recounted that during the Revolution the militia suffered from, "want of confidence in themselves, that reluctancy to come out, that impatience to get home, and that waste of public and destruction of private property-which has ever marked an operation merely Militia." Instead, Steuben proposed seven national legions of select white militiamen that would rotate in service from two to four years and return to their communities trained and disciplined. They would rejoin the general militia and, over time, this militia would also become better prepared to meet any immediate challenges.⁴¹ Washington strongly approved of Steuben's proposal and even believed it to be a more thorough explanation of his own Continental Militia proposed in his "Sentiments" sent to the Continental Congress.⁴² However, Congress only approved an army of 700 supplemented by 700 volunteers drawn from state militias and expected to serve one year contracts on the western frontier – this fluctuated in subsequent years as conflict in the west continued to challenge this small force.⁴³

In 1786, Knox, now the Secretary of War, also promoted his own outline for reform in his "Plan for the General Arrangement of the Militia." Again, by focusing on training younger militiamen, Knox thought service would, "imbibe a love of their country — reverence and obedience to its laws — courage and elevation of mind — openness and liberality of character — accompanied by a just spirit of honor." Under his plan, young men, 18-20 years old, would make up the Advanced Corps of the militia and be expected to attend camps of 10-30 days and support the military as needed for three years. At the end of this service they would turn in their arms and receive a certificate, "required as an indispensible qualification for exercising any of the rights of a free citizen." Knox wanted to see militia service tied to the full rights of citizenship (e.g. voting rights) for white male citizens.⁴⁴ These young men would then join the Main Corps that consisted of men 21-45 years of age and be reequipped by their state. Since the Main Corps would hold fewer muster days and have less training, the troops coming from the Advanced Crops would provide much needed examples of discipline and training to the rest of the men. The final Reserved Corps, men 46-60 years old, would only be used for local state emergencies and would be mustered twice a year for an inspection of arms but would not be expected to participate in the "exercise and manoeuvres" required of the Main Corps. Knox believed this tiered plan would create an "energetic republican militia" that would not suffer from the same problems experienced during the revolution.⁴⁵

The select militia ideas by Washington, Steuben, and Knox did receive some initial support for providing economically feasible and carefully structured plans for training the population while not over-burdening all citizens. But Knox’s attempt to tie citizenship with service was not popular. Additionally, the plans all required central control for them to work nationally and many political leaders did not agree with or trust this centralization of power.⁴⁶ This question of government control would continue to plague national militia reform.

The development of Shay's Rebellion in 1786 was used by some politicians to promote the need for a new national constitution that could address some of the weaker points of the Articles of Confederation. However, the reluctance and outright insubordination of the militia in western Massachusetts during the rebellion did not impact the retention of the militia as an important component of national defense. As seen in the two sections from the Constitution above, the militia remained important to preserving the "Laws of the Union" and could be utilized by the states, congress, and the President.

Among the many debates between Federalists and Anti-Federalists over the new Constitution, the control, training, and recruitment of the militias was also contested. Anti-Federalists contended that the militia could also be used by a tyrant if it became too centralized. Among the Anti-Federalists who disliked the proposed Constitution was Luther Martin who in his report on the Constitutional Convention to the representatives of Maryland in 1787 clearly thought the states' control over the militia was essential. Allowing Congress to call forth the militia and march them beyond state borders was only the beginning. Federal organization would not only eliminate local control but force training and expectations that would not meet the unique needs of each state. Only the states could know what preparation the militia would need for their particular circumstances and challenges and would lose this adaptability if forced to adopt a federalized training program. Martin found this lack of state control of the militias fundamental and the, "most convincing proof, the advocates of this system design the destruction of the state governments." He also feared that under federal organization the militia would be neglected and disarmed and that citizens might even welcome the development of a standing army so they could be "freed from the burden of militia duties, and left to their own private occupations and pleasures." Martin further believed the martial training prescribed by the Federal government would be too harsh and discourage participation in the militia system. He stated that militiamen would be treated as common footsoldiers and, "be subjected to military law, and tied up and whipped at the halbert, like the meanest of slaves."⁴⁸ The Anti-Federalists believed national control of the militia would enable disinterested citizens to shirk their duties and harsh training would further clear the ranks of respectable citizens. Only the poorest citizens would make up the militia; these poor militiamen were considered corruptible and their loyalty could be bought by a tyrant or made loyal to the federal government instead of the states.⁴⁹ Finally, Anti-Federalists like the Federalist Farmer thought the creation of select militias would rely too much on young men who were not as clearly attached to the community and may likewise support the federal government over the states. Additionally, these select militias would receive better funding and training which would in effect make the general militias obsolete.⁵⁰

The Federalists responded that the militia would remain composed of the people and as such could not be corrupted. In defense of the Constitution at the Virginian ratification convention, Francis Corbin asked, "Who are the militia? Are we not militia? Shall we fight against ourselves? No, sir; the idea is absurd."⁵¹ In Federalist 46, James Madison added that because the state governments control the appointment of officers it would be impossible for the national government to corrupt the militia.⁵² Alexander Hamilton, who had chaired the earlier reform committee (see above), argued the general militia proved inefficient in the Revolutionary War and was too expensive to maintain.⁵³ Hamilton’s arguments in Federalist 29 clearly favored central organization of the militia to make it an effective force and viable alternative to a standing army. This disciplined militia would make the army unnecessary and, "will be a more certain method of preventing its [the army’s] existence than a thousand prohibitions upon paper." He then defended the creation of a select militia since, "the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable." Hamilton noted that the very force that the Anti-Federalists viewed as corruptible and dangerous he saw as the one security – a select militia that had effective training would be better prepared to resist tyranny than the inconsistent and ill-prepared general militia. "Where in the name of common-sense," asked Hamilton, "are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens?"⁵⁴

In partial response to these debates, the Bill of Rights was added to the Constitution in 1789. This included the Second Amendment: "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."⁵⁵ Some historians interpret this amendment as guaranteeing the states' control over militias and a direct response to the Anti-Federalist fears about federal control of the militias discussed above. Regardless of the interpretation (see our first article on Interpreting the Second Amendment) the Bill of Rights did not resolve the earlier questions of how to reform and organize the militia.

The Uniform Militia Act of 1792

After accepting the presidency in 1789, George Washington asked Congress to organize the militia.⁵⁶ By January 1790, John Knox resubmitted a revised version of his militia reform (discussed above) to Congress and President Washington.⁵⁷ The plan was sent to committee in April but would not be reinvigorated politically until after the sound defeat of Lieutenant Colonel Josiah Harmer in the Northwest Territory in the fall of 1790. Harmer blamed the militia, in part, for his defeat and accused the states of sending old men and boys who ran before engaging the enemy.⁵⁸ This encouraged the committee to debate the plan in December of that same year. However, it would take another military defeat in the Northwest Territory in 1791, this time under General St. Clair whose army was supplemented by volunteers from the militia, to finalize the measure.⁵⁹

The Uniform Militia Act passed in May of 1792 did not retain many of the components suggested by both Knox and Washington. Knox’s idea to tie the rights of citizenship with militia duty proved unpopular early and was one of the first ideas to be eliminated.⁶⁰ The proposal by Knox of a select Advanced Corps that would train young men for the General Corps remained partially intact as late as March of 1792.⁶¹ However, the development of a select militia, created to ease the cost and logistics of disciplining the militia, was removed from the act when it passed. The last debates in the House of Representatives before the vote show that concerns about federal control and requirements of service remained. Representative Jeremiah Wadsworth believed the objections and changes to Knox’s plan had effectively removed the purpose behind the bill and, "had been managed in such manner, as to pare the bill now under consideration, down to such an inadequate, defective system, that he did not feel much interested in its fate." However, Wadsworth continued that some provision was necessary since, "the militia of the several States exist at the present moment more by general consent of the persons forming them in the several States, than in consequence of any laws of the particular States."⁶² In the end, the Uniform Militia Act of 1792 offered only a general guideline for militia organization while it reiterated the expectation that both state and national governments could rely on militia forces in times of need.

The basic framework for the militia was largely based on the historic but inconsistent state militia traditions. Able-bodied white male citizens, 18-45 years old, were expected to register with their local officer for militia service. This was not dissimilar to state traditions but debate by the committee in charge of drafting this bill illustrates that even the identification of who made up the general militia varied.⁶³ Additionally, militiamen were to supply their own arms and equipment which had to be presented at muster for inspection by the brigade-inspector. Similar procedures already existed in many states. As noted in the history above, it was sometimes problematic for the poorer militiamen to supply their own arms and local efforts were often made to arm them from seized weapons of Loyalists or criminals. The committee was aware of this fact and debated whether the federal or state governments should be required to supply arms to those who could not afford their own.⁶⁴ Ultimately it was left up to the states to set fines or penalties for those who did not procure arms and determine if they would supply arms for poor militiamen.⁶⁵ The act also outlines the organization of companies and officers and requires states to follow the rules of discipline outlined by Congress in 1779. Nevertheless, the act did not provide an adequate means to enforce compliance and this lack of consequences effectively left the militias' organization up to the individual states.

Several states did amend their constitutions to reiterate the importance of the militias. This included right to arms provisions similar to the Second Amendment with association of arms with the free State. Additionally, states reiterated their right to limit the service of their militias outside their state borders. Many also protected conscientious objectors and continued to allow the payment of fees or funding of substitutes for those opting out of militia duty. Finally, some states also formalized fees for various infractions from refusing to muster to missing slave patrol duty.⁶⁷ Thus there was some effort on the part of the states to organize their militias along the guidelines outlined in the Uniform Militia Act. However, they continued to allow substitutions, fees, and exemptions which prevented the real organization of general militias made up of, "each and every free able-bodied white male citizen" between the ages of 18 and 45 as expected.

The militias were still largely unwieldy and slow to respond to emergencies outside their immediate communities. In 1794, when President Washington mustered the militias to help suppress the Whiskey Rebellion, it became obvious that uniform procedures and enlistment had not been achieved.⁶⁸ A subsequent attempt to reintroduce the production of a select militia was again defeated in Congress in 1796.⁶⁹ When President Thomas Jefferson requested a review of the militias, he only received reports from six states and one territory. These reports showed that the states had not complied with the Uniform Militia Act and almost half of their militiamen were not properly armed or equipped.⁷⁰ Although riding the popular tide of republican support, even Jefferson was not able to institute new militia reform.⁷¹

During the War of 1812, the militia again inconsistently performed its duties. Andrew Jackson proved they could be useful in his western victories culminating in the Battle of New Orleans. But in the east militiamen appeared to abandon their principle expectation to protect their communities at all cost. Both Buffalo and Black Rock were evacuated ahead of the invading British army without any resistance from the local militia. At the Battle of Bladensburg some militia stood their ground but so many others fled that it became satirized as the "Bladensburg Races" where politicians and the troops left the capital open to destruction before ever engaging the enemy.⁷² Additional problems trying to use the militia beyond America’s borders against British Canada eliminated the idea that the militia could be an effective replacement for the military.

After the war, the idea of creating an effective general militia was largely dropped. Different presidents would recommend militia reform between 1816-1835 another thirty-one times; however, no major reform passed.⁷³ States continued to ignore the Uniform Militia Act and state militia companies declined. This coincided with a decrease in the rhetoric against standing armies and tolerance for the small, but growing military. Both the federal and state governments found the reality of funding and organizing the general militia too unwieldy. But the American experiment with the militia was not over. A resurgence of volunteer companies, which had existed since colonial times, would revitalize some of the ideas behind the militia system and reintroduce the concept of utilizing a select militia. Their service and activism would directly influence the eventual creation and federalization of the National Guard.

Citizen-Soldiers, Part II: Volunteer Militias and the National Guard

Return to Legal Topics
Table of Contents

© enlighten technologies™
Follow @enlightenNews
and Heather Pundt 2016
(Google+ Profile)
Follow @HeatherPundt
Published February 2016

Endnotes:

1"An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States," 8 May 1792, United States Statutes at Large, Vol. 1, 2nd Congress, 1st Sess., Chapter 33.

2 Edmund S. Morgan, "The People in Arms: The Invincible Yeoman,” in Whose Right to Bear Arms did the Second Amendment Protect?, ed. Saul Cornell (Boston: Bedford, 2000) 127 and Lawrence Delbert Cress, "An Armed Community: the Origins and Meaning of the Right to Bear Arms," in Gun Control and the Constitution: Sources and Explorations on the Second Amendment, ed. Robert J. Cottrol, Controversies in Constitutional Law (New York: Garland Pub., 1994) 277.

3 Roy G. Weatherup, "Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment," in Gun Control and the Constitution, ed. Robert J. Cottrol (New York: Garland Pub., 1994) 189. Failure to raise the "hue and cry" and participate in law enforcement could result in a fine or imprisonment. Joyce Lee Malcolm, "The Right of the People to Keep and Bear Arms: The Common Law Tradition," in Gun Control and the Constitution, ed. Robert J. Cottrol (New York: Garland Pub., 1994) 233.

4 Michael Dale Doubler, Civilian in Peace, Soldier in War: The Army National Guard, 1636 - 2000 (Lawrence, Kan: Univ. Press of Kansas, 2003) 8.

5 See our first article for a longer description. Interpreting the Second Amendment, An Introduction.

6 Lawrence Delbert Cress, Citizens in Arms: The Army and the Militia in American Society to the War of 1812 (Chapel Hill: University of North Carolina Press, 1982) 4.

7 The General Court of Massachusetts required some militia to stay at the ready after the Pequot War in 1645. Doubler, Civilian in Peace, Soldier in War, 16. See also the summary of colonial statutes in Clayton Cramer's "Colonial Firearm Regulation," Journal on Firearms and Public Policy, Second Amendment Foundation, 16 (2004) 2-6.

8 John K. Mahon, History of the Militia and the National Guard (New York; London: Macmillan, 1983) 17-18.

9 Doubler, Civilian in Peace, Soldier in War, 20.

10 Cress, Citizens in Arms, 7. The first law organizing slave patrols was enacted in South Carolina in 1690, Mahon, History of the Militia and the National Guard, 22.

11 Cress, "An Armed Community,” 281 and Mahon, History of the Militia and the National Guard, 9.

12 John K. Mahon, The American Militia, Decade of Decision, 1789-1800 (Gainesville: University of Florida Press, 1960) 1-2 and Cress, Citizens in Arms, 4.

13 Doubler, Civilian in Peace, Soldier in War, 21 and Cress, Citizens in Arms, 5.

14 Mahon, History of the Militia and the National Guard, 20-21.

15 Doubler, Civilian in Peace, Soldier in War, 22.

16 For example, see Virginia’s laws in Hening, Statutes at Large, May 1723 II.5 and August 1755 II.7, VAGenWeb.

17 For an online version see "The Exercise for the Militia of the Province of Massachusetts-Bay," Fletcher's Scouting Company.

18 Hening, Statutes at Large, April 1757 I.1, VAGenWeb.

19 Mahon, History of the Militia and the National Guard, 28.

20 Cress, Citizens in Arms, 9.

21 Mahon, History of the Militia and the National Guard, 29 and Don Higginbotham, "The Federalized Militia Debate: A Neglected Aspect of Second Amendment Scholarship," in Whose Right to Bear Arms did the Second Amendment Protect?, ed. Saul Cornell (Boston: Bedford, 2000) 100.

22 Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (Albuquerque: University of New Mexico Press, 1984) 60.

23 American Archives, Series 4, Vol. 1, Page 1031, The Library of Congress. Cress notes that by the following year at least seven states were following recommendations from the Continental Congress to organize their militias. Cress, Citizens in Arms, 49.

24 Articles of Confederation, Article 6 §4, The Library of Congress.

25 The Articles of Confederation also illustrate the tensions between the different states and the concern that some could overpower their neighbors if allowed to raise their own private armies.

26 Doubler, Civilian in Peace, Soldier in War, 47.

27 George Washington to the Continental Congress, September 24, 1776, University of Groningen.

28 George Washington to the Continental Congress, December 20, 1776, The Library of Congress.

29 George Washington to the Pennsylvania Council of Safety, January 29, 1777, National Archives. When citizens did pay the fine it was usually the wealthy. In Philadelphia, Rosswurm found that by 1779 55% paid the fine to avoid militia duty. These men paying the fine were three times wealthier than those who served. Steven Rosswurm, Arms, Country, and Class: The Philadelphia Militia and "Lower Sort" during the American Revolution, 1775-1783 (New Brunswick: Rutgers University Press, 1987) 207.

30 George Washington to the Continental Congress, January 29, 1778, National Archives.

31 Rosswurm, Arms, Country, and Class, 115 and 122-126.

32 Mahon, The American Militia, 52.

33 Rosswurm, Arms, Country, and Class, 145-146.

34 Cress, Citizens in Arms, 59.

35 Militias influenced early by the Patriots cause – Loyalist officers were replaced and elites who held officer positions without experience were replaced early. Doubler, Civilian in Peace, Soldier in War, 29. See also Mahon, History of the Militia and the National Guard, 35 and 44; Rosswurm, Arms, Country, and Class, 238 and Robert J. Spitzer, Gun Control: A Documentary and Reference Guide (Greenwood Publishing Group, 2009) 54-55.

36 Mahon, History of the Militia and the National Guard, 37-38 and Rosswurm, Arms, Country, and Class, 234-235.

37 David C. Williams, "Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment," in Gun Control and the Constitution: Sources and Explorations on the Second Amendment, Controversies in Constitutional Law, ed. Robert J Cottrol (New York: Garland Pub., 1994) 329.

38 Alexander Hamilton to George Washington, 9 April 1783, Founders Online, National Archives.

39 George Washington, "Sentiments on a Peace Establishment," 2 May 1783, The Founders' Constitution, Volume 3, Article 1, Section 8, Clause 12, Document 6, The University of Chicago Press.

40 Cress, Citizens in Arms, 78-88 and Alexander Hamilton, "Report of a Committee to the Continental Congress on a Military Peace Establishment," 18 June 1783, in Soldier-Statesmen of the Constitution, Robert K. Wright Jr. and Morris J. Macgregor Jr., U.S. Army Center of Military History.

41 Frederick von Steuben, "A Letter on the Subject of an Established Militia, and Military Arrangements, Addressed to the Inhabitants of the United States," 1784, in Soldier-Statesmen of the Constitution, Robert K. Wright Jr. and Morris J. Macgregor Jr., U.S. Army Center of Military History.

42 George Washington to Frederick von Steuben, 15 March 1784, in Soldier-Statesmen of the Constitution, Robert K. Wright Jr. and Morris J. Macgregor Jr., U.S. Army Center of Military History.

43 "Resolution of the Continental Congress Creating the Peace Establishment," 3 June 1784 and "Resolution of the Continental Congress Expanding the Peace Establishment," 20 October 1786, in Soldier-Statesmen of the Constitution, Robert K. Wright Jr. and Morris J. Macgregor Jr., U.S. Army Center of Military History.

44 "Every State possesses, not only the right of personal service from its members, but the right to regulate the service on principles of equality, for the general defence. All being bound, none can Complain of injustice, on being obliged to perform his equal proportion. Therefore it ought to be a permanent rule, that those who in youth, decline or refuse to subject themselves to the course of military education, established by the laws, should be considered as unworthy of public trust, or public honors, and be excluded there from accordingly." Henry Knox, "A Plan for the General Arrangement of the Militia of the United States," 1786, The Potowmack Institute.

45 Henry Knox, "A Plan for the General Arrangement of the Militia of the United States," 1786, The Potowmack Institute.

46 Higginbotham, "The Federalized Militia Debate," 102 and 104 and Cress, Citizens in Arms, 92-95.

47 Constitution of the United States, The Charters of Freedom, National Archives.

48 Luther Martin, "Letter on the Federal Convention," 1787, in The Debates in the Several State Conventions of the Adoption of the Federal Constitution, ed. Jonathan Elliot, Vol. 1, The Online Library of Liberty.

49 Higginbotham, "The Federalized Militia Debate," 105 and Weatherup, "Standing Armies and Armed Citizens," 210.

50 "Letters from the Federal Farmer, Letter 18," 25 January 1788, Constitution Society.

51 "The Debates in the Convention of the Commonwealth of Virginia, on the Adoption of the Federal Constitution," 7 June 1788, in The Debates in the Several State Convention on the Adoption of the Federal Constitution, ed. Jonathan Elliot, Constitution Society.

52 James Madison, "The Influence of the State and Federal Governments Compared," 29 January 1788, Federalist No. 46, The Library of Congress.

53 "Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion." Alexander Hamilton, "The Same Subject Continued: The Powers Necessary to the Common Defnese Further Considered," 21 December 1787, Federalist No. 25, The Library of Congress.

54 Alexander Hamilton, "Concerning the Militia," 10 January 1788, Federalist No. 29, The Library of Congress.

55 Bill of Rights, The Charters of Freedom, National Archives.

56 Cress, Citizens in Arms, 116.

57 To George Washington from Henry Knox, 18 January 1790, Founders Online, National Archives.

58 Mahon, History of the Militia and the National Guard, 50.

59 Cress, Citizens in Arms, 120.

60 Halbrook, That Every Man Be Armed, 66.

61 For example, see the debates on the Militia Bill 21 February 1792 in the Annals of Congress, 2nd Cong., 1st Sess., 417-424, Library of Congress. See also Mahon, The American Militia, 17.

62 Annals of Congress, 2nd Cong., 1st sess., 420, Library of Congress.

63 Register of Debates, Vol 2. (1834) 1851-1852 and 1860-1861.

64 Register of Debates, Vol 2. (1834) 1852-1856.

65 Higginbotham, "The Federalized Militia Debate," 110.

66 "An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States," 8 May 1792, United States Statutes at Large, Vol. 1, United State Congress, Second Congress, 1st Session, Chapter 33.

67 Mahon, The American Militia, 22 and 47 and Mahon, History of the Militia and the National Guard, 53-54.

68 Doubler, Civilian in Peace, Soldier in War, 72-73.

69 Mahon, The American Militia, 28.

70 Ibid., 62-64 and Mahon, History of the Militia and the National Guard, 60. This was in spite of earlier legislation that had encouraged the arming of the militias; for example, see, "An Act providing Arms for the Militia throughout the United States," 6 July 1798, Chapter 65, 576-577, Statutes at Large, Library of Congress.

71 Cress, Citizens in Arms, 166-167.

72 Mahon, History of the Militia and the National Guard, 71, 73, and 76-77.

73 Ibid., 79.

Sources and Further Reading

Alexander Hamilton to George Washington, 9 April 1783, Founders Online, National Archives, accessed 2/11/14, http://founders.archives.gov/
documents/Hamilton/01-03-02-0206.
-----, “Report of a Committee to the Continental Congress on a Military Peace Establishment,” 18 June 1783, in Soldier-Statesmen of the Constitution, Robert K. Wright Jr. and Morris J. Macgregor Jr., U.S. Army Center of Military History, accessed 2/15/2014, http://www.history.
army.mil/books/RevWar/ss/peacedoc.htm.
-----, "The Same Subject Continued: The Powers Necessary to the Common Defnese Further Considered," 21 December 1787, Federalist No. 25, The Library of Congress, accessed 2/14/14, http://thomas.loc.gov/home/histdox/fed_25.html.
-----, "Concerning the Militia," 10 January 1788, Federalist No. 29, The Library of Congress, accessed 2/14/14, http://thomas.loc.gov/
home/histdox/fed_29.html.

American Archives, Series 4, Vol. 1, Page 1031, The Library of Congress, accessed 1/30/14, http://lincoln.lib.niu.edu/
contextualize.pl?p.1238.amarch.5407.5412.
5422.

“An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States," 8 May 1792, United States Statutes at Large, Vol. 1, United State Congress, Second Congress, 1st Session, Chapter 33, wikisource.org, accessed 2/15/14, http://en.wikisource.org/wiki/
United_States_Statutes_at_Large/Volume_1/
2nd_Congress/1st_Session/Chapter_33.

Articles of Confederation, Article 6 §4, The Library of Congress, accessed 1/30/14, http://memory.loc.gov/cgi-bin/ampage?collId=
llsl&fileName=001/llsl001.db&recNum=128.

Bill of Rights, The Charters of Freedom, National Archives. http://www.archives.gov/
exhibits/charters/bill_of_rights_transcript.html.

Cramer, Cramer. "Colonial Firearm Regulation." Journal on Firearms and Public Policy. Second Amendment Foundation, 16 (2004) 2-6.

Constitution of the United States, The Charters of Freedom, National Archives, accessed 2/15/14, http://www.archives.gov/exhibits/
charters/constitution_transcript.html.

Continental Congress, “Resolution of the Continental Congress Creating the Peace Establishment,” 3 June 1784 and “Resolution of the Continental Congress Expanding the Peace Establishment,” 20 October 1786, in Soldier-Statesmen of the Constitution, Robert K. Wright Jr. and Morris J. Macgregor Jr., U.S. Army Center of Military History, accessed 2/15/2014, http://www.history.army.mil/books/
RevWar/ss/peacedoc.htm.

Cornell, Saul, ed. Whose Right to Bear Arms did the Second Amendment Protect? Boston: Bedford, 2000.

Cottrol, Robert J., ed. Cottrol,Gun Control and the Constitution: Sources and Explorations on the Second Amendment, Controversies in Constitutional Law. New York: Garland Pub., 1994.

Cress, Lawrence Delbert. Citizens in Arms: The Army and the Militia in American Society to the War of 1812. Chapel Hill: University of North Carolina Press, 1982.

"The Debates in the Convention of the Commonwealth of Virginia, on the Adoption of the Federal Constitution," 7 June 1788, in The Debates in the Several State Convention on the Adoption of the Federal Constitution, ed. Jonathan Elliot, Constitution Society, accessed 2/16/14, http://www.constitution.org
/rc/rat_va_06.htm.

Doubler, Michael Dale. Civilian in Peace, Soldier in War: The Army National Guard, 1636 - 2000. Lawrence, Kan: Univ. Press of Kansas, 2003.

"The Exercise for the Militia of the Province of Massachusetts-Bay," Fletcher's Scouting Company, Accessed 1/30/14,
http://fletchersscoutingcompany.org/
?attachment_id=385.

Halbrook, Stephen P. That Every Man Be Armed: The Evolution of a Constitutional Right. Albuquerque: University of New Mexico Press, 1984.

Hening, Statutes at Large, May 1723 II.5 and August 1755 II.7, VAGenWeb, accessed 1/30/14, http://vagenweb.org/hening/.

Henry Knox, "A Plan for the General Arrangement of the Militia of the United States," 1786, The Potowmack Institute, accessed 2/13/14, http://www.potowmack.org/knox.html.
-----. To George Washington from Henry Knox, 18 January 1790, Founders Online, National Archives, accessed 2/15/14, http://founders.archives. gov/documents/
Washington/ 05-05-02-0009.

"Letters from the Federal Farmer, Letter 18," 25 January 1788, Constitution Society, accessed 2/16/14, http://www.constitution.org/afp/
fedfar18.htm.

James Madison, "The Influence of the State and Federal Governments Compared," 29 January 1788, Federalist No. 46, The Library of Congress, accessed 2/16/14, http://thomas.loc.
gov/home/histdox/fed_46.html.

Mahon, John K. The American Militia, Decade of Decision, 1789-1800. Gainesville: University of Florida Press, 1960.
-----. History of the Militia and the National Guard. New York; London: Macmillan ; Collier Macmillan, 1983.

Luther Martin, "Letter on the Federal Convention," 1787, in The Debates in the Several State Conventions of the Adoption of the Federal Constitution, ed. Jonathan Elliot, Vol. 1, The Online Library of Liberty, accessed February 11, 2014, http://oll.libertyfund.org/
title/1905/112202.

Frederick von Steuben, "A Letter on the Subject of an Established Militia, and Military Arrangements, Addressed to the Inhabitants of the United States," 1784, in Soldier-Statesmen of the Constitution, Robert K. Wright Jr. and Morris J. Macgregor Jr., U.S. Army Center of Military History, accessed 2/15/2014,
http://www.history.army.mil/books/RevWar/
ss/ peacedoc.htm.

Rosswurm, Steven. Arms, Country, and Class: The Philadelphia Militia and “Lower Sort” during the American Revolution, 1775-1783. New Brunswick: Rutgers University Press, 1987.

Spitzer, Robert J. Gun Control: A Documentary and Reference Guide. Greenwood Publishing Group, 2009.

George Washington, "Sentiments on a Peace Establishment," 2 May 1783, The Founders' Constitution, Volume 3, Article 1, Section 8, Clause 12, Document 6, The University of Chicago Press, accessed 2/12/14, http://press-pubs.uchicago.edu/founders/documents/
a1_8_12s6.html.
----- to the Continental Congress, September 24, 1776, University of Groningen, accessed 1/30/14, http://www.let.rug.nl/usa/presidents/george-washington/on-recruiting-and-maintaining-an-army-1776.php.
----- to the Continental Congress, December 20, 1776, The Library of Congress, accessed 1/30/14, http://www.loc.gov/teachers/
classroommaterials/presentationsandactivities/
presentations/timeline/amrev/north/falls.html.
----- to the Pennsylvania Council of Safety, January 29, 1777, National Archives, accessed 1/30/2014, http://founders.archives.gov/
documents/Washington/03-08-02-0192.
----- to the Continental Congress, January 29, 1778, National Archives, accessed 1/30/14, http://founders.archives.gov/documents/
Washington/03-13-02-0335.
----- to Frederick von Steuben, 15 March 1784, in Soldier-Statesmen of the Constitution, Robert K. Wright Jr. and Morris J. Macgregor Jr., U.S. Army Center of Military History, accessed 2/15/2014, http://www.history.army.mil/books/RevWar/
ss/peacedoc.htm.

Return to Legal Topics
Table of Contents

© enlighten technologies™ and Heather Pundt 2016
Heather received her MA in History from Portland State University and has written online articles for enlighten technologies™ since 1996. This introduction is the first in a series of research articles on the Second Amendment and gun culture in the United States. To contact Heather, please use hpundt (at) lawchek.net or visit her Google+ Profile.