HARPER
CITIZEN OR SOLDIER? AN ORIGINALIST RESPONSE TO DISTRICT OF COLUMBIA V. HELLER AND THE INTELLECTUAL ORIGINS OF THE SECOND AMENDMENT
CHESTER HARPER
In District of Columbia v. Heller, Justice Antonin Scalia rewrote Second Amendment jurisprudence. In a classic example of originalist methodology, Justice Scalia looked to historical sources to find the Framers intent and concluded that the Second Amendment preserves an individual right to self- defense unrelated to militia service. Regrettably however, the historical analysis which underpins this opinion is deeply flawed. This article offers an originalist response to the Heller opinion by subjecting the majority s claims to critical historical analysis. By reexamining many of the period sources cited by the majority, this article demonstrates that the Second Amendment s reference to “a well regulated Militia” cannot be so easily dismissed. And, by introducing a variety of new sources into the conversation, this article shows that the right to bear arms has nothing to do with personal protection. Instead, the Framers viewed it as a critical safeguard to ensure that minority interests cannot suborn the use of military force in a democratic state. Far from protecting an individual right, this article concludes that the Framers intent for the Second Amendment was to ensure that the persons bearing arms in defense of the nation were citizens first, and soldiers second.
I. INTRODUCTION 7 II. DISTRICT OF COLUMBIA V. HELLER 8 A. The Majority Opinion 9 B. Holding 11 III. ANALYSIS 12 A. The Militia System of the Early Republic 12 1. The Militia Acts 12 2. The Form of the Militia 15 3. Applying the Militia Acts to the Heller Opinion 17 B. James II, Blackstone, and the Origins of the Right to Bear Arms 18 1. Black ne Righ 20 2. Black ne Righ a Unde d b he F ame 21
In memoriam: Daniel Robert Harper - 1924 J.D. Candidate of Vermont Law School, 2020.
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C. Applying the History to the Heller Opinion 22 IV. THE INTELLECTUAL HISTORY OF THE MILITIA 23 A. Soldiers in the Eighteenth Century 25 B. The Politics of Soldiers 28 C. Applying the Intellectual History to the Heller Opinion 31 V.CONCLUSION 32
I. INTRODUCTION
The District of Columbia v. Heller opinion is a watershed in American jurisprudence. For over 200 years before the Heller opinion, legal scholars and federal courts struggled to define the scope and bounds of the constitutional rights implied by the Second Amendment. One line of argument interprets the right to keep and bear arms as intrinsically connected he idea f mili a e ice and A ell eg la ed Mili ia. Thi ch l f thought asserts that the primary intent of the Second Amendment was to prevent the federal government from disbanding the state-run militias and thereby coercing states through military force.1 Another school of thought argues that the right to keep and bear arms is an independent pressure valve to allow individuals to oppose tyranny in case democratic institutions fail.2 A third school maintains that the right to protect oneself from external threats is inherent, founded in natural law, long recognized as a right in the English common law, and permanently enshrined as such in the United States Constitution. In the Heller opinion, Justice Antonin Scalia finally brought the weight of the Supreme Court in support of this final interpretation.3 Unfortunately, the historical argument which underpins this opinion lacks context. Justice Scalia seems to readily embrace the romantic but entirely ahistorical legend of the free militiaman, a man who leaps to defend his hearth and home motivated only by his desire to remain free. Exacerbated by the modern-day Militia Movement, this interpretation stands in direct
1 See Di ic f C l mbia . Helle , 554 U.S. 570, 652 (2008) (S e en , J. di en ing) ( The proper allocation of military power in the new Nation was an issue of central concern for the Framers. The compromises they ultimately reached, reflected in Article I's Militia Clauses and the Second Amendment, represent quintessential examples of the Framers' splitting the atom of sovereignty. ) (internal quotations omitted). 2 See Orders We Will Not Obey, OATHKEEPERS (Dec. 9, 2018), https://oathkeepers.org/declaration- of-orders-we-will-not- be / ( [W]e affirm that the purpose of the Second Amendment is to preserve the military power of the people so that they will, in the last resort, have effective final recourse to arms and to the G d f H in he face f ann . ). 3 See District of Columbia, 554 U.S. a 635 ( [W]e h ld ha he Di ic ban n handg n possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defen e. ) 8 THE DARTMOUTH LAW JOURNAL VOL. XVII:1
contrast to the heavily-regulated and state-centered militia of the early Republic. The dreamy imagery of the rugged and independent frontiersman, musket in hand to fight the tyranny of empire, is a myth that does not survive even a casual examination of the historical record. Basing our understanding of the Constitution on such a flippant historical analysis is deeply problematic. This article looks at some of the specific claims about the history of the militia and the right to bear arms made by Justice Scalia and subjects them to critical historical analysis. Section I will provide an overview of the maj i hi ical a g men and h he ela e he ke h lding f Heller. Section II will show that the militia was a robust civic institution which represented a philosophical alternative to standing armies. Examining the 1792 Militia Acts will show that the militia was a highly-regulated organization that mandated near-universal membership. Furthermore, this section will look at the same history invoked by Justice Scalia to show that the right to bear arms is discussed chiefly as a right to resist tyranny and that the right to resist was reserved to the democratic majority. As such, the Second Amendment does not address an individual right at all, but the right of an entire population to maintain representative democracy through civic institutions. Beyond the direct analysis of the Heller opinion, Section III will take an in-depth look at the intellectual history of liberal democracy to offer a nuanced look at how the Framers comprehended the idea of the militia and national defense. In the broadest possible terms, the intent of the Second Amendment was to acknowledge that the military, although necessary for national defense, also posed an existential threat to democracy. A fundamental concern of contemporary political theorists was democratizing military power so that it could not be used to compel acceptance of undemocratic acts. In practical terms, this meant replacing professional armies with a citizen military; the loyalty of a professional military could be subverted, but an armed citizenry could be trusted to protect the institutions safeguarding their own rights and freedoms. The militia is the American implementation of this democratic ideal, and by extension, the intent of the Second Amendment.
II. DISTRICT OF COLUMBIA V. HELLER
The District of Columbia passed the Firearms Control Regulation Act in 1975.4 Inter alia, the Act prohibited carrying an unregistered firearm
4 Firearms Control and Regulation Act of 1975, 23 D.C. Reg. 1091 (July 23, 1976). SPRING 2019 THE DARTMOUTH LAW JOURNAL 9
within the district and did not allow the registration of handguns in general.5 Furthermore, the law prohibited any lawfully-owned firearm from being stored in the home without either being disassembled or rendered inoperable with a trigger lock.6 In 2002, six residents of the District of Columbia challenged the 1975 Act in federal court alleging that it violated the Second Amendment by criminalizing the possession of a working firearm even within the home.7 The district court dismissed the lawsuit, and on appeal, the D.C. Circuit Court of Appeals found that only one plaintiff, Dick Heller, had suffered a cognizable injury sufficient for standing through denial of a permit.8 Heller, a special police officer who carried a firearm while on duty, had applied to the DC chief of police for a permit for a handgun he wished to keep in his home but was denied because of the 1975 Act.9 Holding that Dick Heller does have a right to possess a functioning firearm if only for the purposes of home defense the Court of Appeals reversed, and the Supreme Court granted certiorari.10
A. THE MAJORITY OPINION
Justice Scalia begins his opinion with a textual analysis, dividing the e f he Sec nd Amendmen in i efa cla e, A ell eg la ed Militia, being necessary to the security of a free S a e, and i e a i e cla e, he igh f he e le kee and bea A m , hall n be inf inged. As a matter of plain grammar, Justice Scalia asserts that the prefatory clause may clarify ambiguities in the operative clause, but it cannot limit or expand the scope of the operative clause.11 In other words, while the need for a well- regulated militia may have been the impetus behind the Second Amendment, its constitutional implications do not necessarily stop there. With this baseline established, Justice Scalia rests most of the following argument on the meaning of the operative clause. T ning fi he igh f he e le, J ice Scalia n e ha he only two other uses of this language in the Bill of Rights in the First and Fourth Amendments unambiguously refer to individual rights. 12 F he m e, he b e e ha e e e f he e le nmi akabl efe
5 District of Columbia, 554 U.S. at 575. 6 Id. 7 Parker v. District of Columbia, 311 F. Supp. 2d 103, 103 (D.D.C. 2004). 8 Parker v. District of Columbia, 478 F. Supp. 3d 370, 401 (D.C. Cir. 2007). 9 District of Columbia, 554 U.S. at 575. 10 Id. at 576. 11 Id. at 578. 12 Id. at 579. 10 THE DARTMOUTH LAW JOURNAL VOL. XVII:1
e e membe f he li ical c mm ni , n an n ecified b e . 13 Nowhere can he find a igh a ib ed he e le hat can only be e e ci ed h gh a ici a i n in me c a e b d . 14 Therefore, to Justice Scalia, the idea that the Second Amendment refers only to the rights of the subset population who participate in the militia is incompatible with the individuali im lied b he igh f he e le. 15 To address the phrase kee and bea a m , J ice Scalia n c n em a dic i na ie .16 [A] m a a b ad e m f an hing ha a man ea f hi defence, or takes into his hands, or useth in wra h ca a ike an he . 17 He al ejec he di en a g men ha bea a m had an idi ma ic meaning at the time which implied military service.18 Instead the majority finds that the phrase had the same plain meaning in the eighteenth century as it has today.19 After considering plain meaning, Justice Scalia looks to the 1688 Glorious Revolution of England for his first attempt at historical analysis.20 The Glorious Revolution saw the unseating of King James II and prompted the passage of the English Bill of Rights the following year.21 Justice Scalia points out that one of the principal charges brought against James II was disarming the Protestant militias of England while arming his own Catholic supporters.22 Many, including Justice Scalia, cite the promise extracted from Jame c - cce , William and Ma , ha P e an ma ha e a m for their defence suitable to their conditions and as allowed b la a he precursor of the Second Amendment.23 Justice Scalia passingly references William Blackstone to demonstrate how that idea evolved and concludes deci i el ha he igh f he e le kee and bea a m a understood as an individual right at the time of the founding.24 Finally, Justice Scalia circles back to ask if the prefatory clause contradicts his reading of the operative clause and concludes that it does not.25 Justice Scalia found the arguments linking the right to bear arms to military service unconvincing. Justice Stevens, for example, argued that the ell eg la ed Mili ia ken f in he efa cla e f he Sec nd Amendment was synonymous with the state- and congressionally-regulated
13 Id. at 580. 14 Id. at 579. 15 Id. at 580-581. 16 Id. at 581. 17 Id. (citing Arms, CUNNINGHAM S NEW AND COMPLETE LAW DICTIONARY (2nd. ed. 1771)). 18 District of Columbia, 554 U.S. at 586-587. 19 Id. at 589. 20 Id. at 592-595. 21 Id. 22 Id. at 593. 23 Id. (quoting English Bill of Rights 1689, 1 W. & M. s. 2, c. 2, Subjects Arms). 24 District of Columbia, 554 U.S. at 594. 25 Id. at 596-597. SPRING 2019 THE DARTMOUTH LAW JOURNAL 11
military forces described in the Militia Clauses of Article I of the Constitution.26 This would imply, at least to some degree, that bearing arms was something that always occurred under government authority. Justice Scalia, h e e , a g e ha he di en c nfla e all mili ia i h he gani ed mili ia. 27 The mili ia, a he in e e i , simply meant all physically fit males who would act for the common defense.28 He asserts that beca e he C n i i n g an C ng e he e call f h he mili ia, hile gi ing i he e c ea e a mie and na ie , i m be ead ha the militia would have already been in existence before it was subjected to federal organization.29 His definition of militia would suggest that it only became an organized military force when called into active service to respond to a national need. Justice Scalia di c ee l di e f he ell- eg la ed alifie in a ingle en ence, a g ing ha i im lie n hing m e han he im i i n f e di ci line and aining. 30 For Justice Scalia, therefore, ide f a na i nal c i i , he mili ia a nothing more than a word to describe an armed populace, able and prepared to defend the security of a free state, whether from a foreign invader or a domestic threat. With this understanding of the militia, the right to keep and bear arms could only be an individual right, particularized to the general population.
B. HOLDING
As a matter of Originalism, Justice Scalia has reached the end of his argument. The language of the Second Amendment invokes an inherent individual right to bear arms for self-defense. Moreover, if a well-regulated militia simply meant an armed population, then the prefatory clause reinforces this conclusion by implying that any disarmament, even of an individual, would undermine that purpose. For confirmation, Justice Scalia looked to commentators and legislators from the period following the ratification, who largely reiterate the language which he already concluded implied an individual right.31 Unfortunately, as a matter of academia, J ice Scalia anal i ha several critical flaws. These vary from clear oversights to substantial omissions or misinterpretations. The following section will examine the e aci f e e al f he maj i i i n hich a e diffic l reconcile with the historical record.
26 Id. at 596. 27 Id. 28 Id. at 595. 29 Id. at 596. 30 Id. at 597. 31 Id. at 607-619. 12 THE DARTMOUTH LAW JOURNAL VOL. XVII:1
III. ANALYSIS
The following section examines the legal history of the early American militia. First, it looks at the actual laws which governed the militia and show that they contradict the characterization of the militia as an unorganized popular association. Instead, the militia was highly-regulated, permanently organized, and represented a cogent scheme of national military service. Second, this section examines the origins of the right to bear arms in English history and common law. The evidence demonstrates that the assertion that this was an individual right is erroneous because the right is discussed exclusively in terms of collective resistance to political oppression. This section concludes, therefore, that the right to bear arms is inseparable from the idea of an organized militia.
A. THE MILITIA SYSTEM OF THE EARLY REPUBLIC
Fa f m J ice Scalia image f he mili ia a an a ilia h me guard, the militia referenced in the Second Amendment was a complete system meant to replace the standing armies of professional soldiers that were then the norm. The political and philosophical reasons for this will be examined in Section 3, but for now, the laws which gave substance to the militia will clearly demonstrate this idea. Throughout his opinion, Justice Scalia carefully avoids emphasizing one major feature of the militia which casts serious doubt on his analysis; at he ime f he na i n f nding, mili ia e ice a ni e al and compulsory. This detail is what he seems to have missed in his discussion of he gani ed mili ia. He a g e ed c i el ha he e f A icle I f he Constitution denotes a militia that already exists, which is correct, but he e eache b a g ing hi im lie i i n gani ed. Pe ha he m astonishing part of the majority opinion is the minimal attention he gives to he d eg la ed. J ice Scalia ld ha e belie e ha he e additional words had no more significance than suggesting militiamen should have enough training to use their weapons. 32 This argument c m le el ign e he fac ha he mili ia a e e l eg la ed b a long history of Militia Acts. The manner and extent of this regulatory scheme i c m le el a dd i h J ice Scalia flippant disregard of the idea of regulation.
1. The Militia Acts
32 Id. at 597. SPRING 2019 THE DARTMOUTH LAW JOURNAL 13
While comprehensive Militia Acts were in place throughout the colonial period, the Militia Acts of 1792 were the operative laws during the c n f ma i e ea and gi e a de ailed l k a h he F ame intended the militia to operate. The two acts, passed six days apart, are the statutory enactments of clauses 15 and 16 of Article I, § 8 of the United States Constitution.33 The First Act provided the legal mechanism for calling forth the militia, and the Second Act outlined how it was to be organized and regulated.34 The First Act, entitled An Act to provide for the calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions ( Fi Ac ), g an he P e iden he e , hen h ea ened i h invasion or insurrec i n, call f h ch n mbe f he mili ia f he a e or states most convenient to the place of danger . . . and to issue his orders for that purpose, to such officer or officers of the militia as he shall think e [.] 35 In case of insurrection within a state, the President had the a h i ( i h he c n en f ha a e legi la e) ai e mili ia f m a different state to suppress the rebellion. 36 Another provision allows the President to call the militia to execute federal laws if a state refuses to do so.37 Additionally, the First Act limits active service for militiamen to ninety days per year and grants such militiamen regular pay while on active duty.38 The punishment for failing to follow orders is a fine based on pay, with imprisonment for failure to pay the fine.39 The Second Act, An Act more effectually to provide for the National Defense by establishing an Uniform Militia throughout the United States, ( Sec nd Ac ) e abli hed a nif m a e n f he a e mili ia f llow. It required states to revise their own militia laws to comply with the federal law within twelve months.40 Critically, the Second Act established who was liable for militia service. Its first words are:
33 The C ng e hall ha e P e . . . T ide f calling f h he Mili ia e ec e he La of the Union, suppress Insurrections and repel Invasions [and] To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the A h i f aining he Mili ia acc ding he di ci line e c ibed b C ng e [.] . 34 An Act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions, ch. 28, § 1, 1 Stat. 264 (1792) [hereafter First Act]; An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States, ch. 33, § 1, 1 Stat. 271 (1792) [hereafter Second Act]. 35 First Act, ch. 28, § 1, 1 Stat. 264 (1792). 36 Id. 37 Id. § 2. 38 Id. § 4. 39 Id. § 5. 40 Second Act, ch. 33, § 1, 1 Stat. 271 (1792). 14 THE DARTMOUTH LAW JOURNAL VOL. XVII:1
Each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years . . . shall severally and respectively be enrolled in the militia by the captain or commanding officer of the company, within whose bounds such a citizen shall reside . . . .41
The Second Act further requires the local commanding officer to enroll any resident of age in the district.42 Despite this broad mandate, the Second Act did allow otherwise eligible persons to be exempted from militia service if they were either physically disabled or employed in vital government functions or trades critical to national interests.43 Exemptions were not easy to obtain, however. The process for receiving a medical exception in Massachusetts, for example, was characteristically bureaucratic: . . . no officer or private soldier . . . shall be exempted from military duty on account of bodily infirmity unless he shall receive a Certifica e f m he S ge n S ge n ma e f the regiment to which he belongs . . . [or] from a reputable surgeon living within the limits of the same . . . which certificate if approved & signed by the Officer commanding the regiment . . . shall intitle him to a full exemption from military duty for the term therein specified.44
The Second Act specifically enumerated the exempted trades and offices. These include officers of the judicial and executive branches, custom house officers, persons employed in mail service, harbor pilots, and any mariner employed by a United States citizen or merchant.45 Individual states often expanded on this list. Massachusetts offers a typical example and further exempts sheriffs, constables, ministers, church elders and deacons, and college students and faculty.46 Many states, including Massachusetts, exempted members of pacifist religious sects such as Quakers and Shakers from service.47 Georgia exempted Quakers, but charged a substantial tax on
41 Id. 42 Id. 43 Id. § 2. 44 An Ac in addi i n an Ac en i led An Ac f he eg la ing and g e ning f he mili ia f he c mm n eal h f Ma ach e , Ch . 54, 795 Mass. Acts 415. 45 Second Act, 1 Stat. 271 § 3. 46 An Act for regulating and governing the militia of the commonwealth of Massachusetts, Chp. 14, 1793 Mass. Acts 380, 381. 47 Id. SPRING 2019 THE DARTMOUTH LAW JOURNAL 15
each individual in exchange for the exemption.48 Pennsylvania went so far as to include the religious conscientious-objector allowance in their Constitution, but included the same exemption tax as Georgia.49
2. The Form of the Militia
In addition to establishing membership, the Second Act mandated how individual militiamen were to arm and equip themselves. Within six months of being enrolled, every militiaman was to furnish themselves with a firearm, bayonet, knapsack, twenty-four rounds of ammunition, and a few other common military necessities.50 Commissioned officers were required to equip themselves with a sword and half-pike.51 Undercutting the popular idea that militiamen used hunting weapons, the Second Act required that all firearms acquired for militia service be in a uniform caliber in the standard military bore.52 The common civilian weapons of the day were smaller in caliber and generally could not fit bayonets.53 To cover the cost of equipping hem el e f mili ia e ice, ci i en e e e mi ed h ld he ame [amount] exempted from all suits, distresses, executions of sales, for debt or f he a men f a e . 54 On a larger scale, the Second Act mandated an organizational and administrative structure comparable to that of contemporary standing state militaries. It required state legislatures to arrange their militia into local companies and battalions and into numbered regiments, brigades, and divisions which represented larger geographic regions.55 Each division was to be commanded by a major-general, each brigade by a brigadier, and each regiment by a lieutenant-colonel commandant, each with appropriate aides- de-camp and command staff.56 The Virginia adoption even specifies the geographic areas for the subdivisions, with one county representing one
48 An act to revise and amend the militia laws of this state, § 31, reprinted in DIGEST OF THE LAWS OF THE STATE OF GEORGIA 348-56 (Horatio Marbury & William H. Crawford eds. 1802). 49 PA. CONST. of 1790, art. VI, § 2. 50 Second Act,1 Stat. 271 § 1. 51 Id. 52 Id. ( f b e fficien f ball f he eigh een h- a f a nd. ) This equates to approximately .69 caliber. 53 See generally GEORGE C. NEUMAN, BATTLE WEAPONS OF THE AMERICAN REVOLUTION (William H. Scurlock ed. 1998) (discussing the forms of firearms in common use during the American Revolution). 54 Second Act, 1 Stat. 271 § 1. 55 Id. § 3 (specifying that, whenever practicable, there were to be sixty-four private soldiers to a company, five companies to a battalion, two battalions to a regiment, and four regiments to a brigade; in total, 2560 private soldiers to a brigade, not including commissioned and non- commissioned officers). 56 Id. 16 THE DARTMOUTH LAW JOURNAL VOL. XVII:1
egimen : [T]he c n ie f Acc mack, N ham n, P ince -Anne, and Norfolk, shall compose one brigade, [three other brigades of four counties each], and he aid b igade hall c m e ne di i i n. 57 The Virginia adoption divided more-populous counties into multiple regiments, while pairing less-populous counties together into a single regiment.58 The Second Act dictates, in great detail, a complete complement of officers, aids, NCOs, quartermasters, medical personnel, and musicians for each regiment which almost exactly mirrors the scheme used by the British and French armies at the time.59 Both Acts imply an ongoing theme: the militia was nothing new and a al a in effec . [T]he mili ia f he e ec i e a e hall be a anged into divisions, brigades, regiments, battalions and companies, as the legislature of each state shall dictate . . . . [W]hen in the field, or in service to the state, each division, brigade and regiment shall respectively take rank acc ding hei n mbe . 60 State adoptions also make it clear that these acts only modify their existing systems rather than creating a new system. For example, the version of this statute adopted by the Massachusetts legi la e incl de he c ndi i n, ha he e en a angemen hall continue as it now i . . . . 61 Sh l la e in he ame a e: [A]ll commissioned officers now in command of the militia in any grade not establi hed b hi ac hall be c n in ed in hei c mmand . . . . 62 In each instance, these Acts acknowledged that the militia was preexisting and gani ed. T a e ha he mili ia nl became gani ed nce i a called forth by the federal executive is untenable. This is problematic for the majority analysis, which relies heavily on a non-existent, unordered militia ef e he di en claim ha he mili ia a an inhe en l a e- and congressionally-regulated military force.63 In keeping with standard military doctrine, each division was also required to field at least one company of artillery and at least one troop of cavalry. 64 Membership in the cavalry was voluntary and members were required to furnish themselves with uniforms, horses, harness, pistols, and sabers at their own expense.65 Because of this added cost, the volunteer cavalry troop was assumed to be reserved for the more affluent citizens.
57 An act for regulating the militia of this Commonwealth, ch. 4, § 2, 1792 Va. Acts 6. 58 Id. § 3. 59 Second Act, 1 Stat. 271 § 3. 60 Id. (emphasis added). 61 An Act for regulating and governing the militia of the commonwealth of Massachusetts, ch. 14, 1793 Mass. Acts 380, 380 (emphasis added). 62 Id. at 384 (emphasis added). 63 District of Columbia v. Heller, 554 U.S. 570, 596 (2008). 64 Second Act, 1 Stat. 271 § 4. 65 Id. § 4. SPRING 2019 THE DARTMOUTH LAW JOURNAL 17
Cannons for the artillery, state and regimental standards, and musical instruments were provided at state expense.66 To ensure the militia was properly equipped and trained, the Second Act required regular musters for drill and inspection and that each state appoint an adjutant-general to oversee these processes. 67 The adjutant- general disseminated orders from the governor, performed inspection tours, and collected and reviewed status returns from every militia unit in the state.68 These returns included the names of every person enrolled in the militia, a report on the condition of their weapons, equipment, and ammunition, and any delinquencies or disciplinary measures relating to that individual.69 The adjutant-general collected and maintained these records and produced abstracts for the governor to review.70
3. Applying the Militia Acts to the Heller Opinion
There are two main lessons from the Militia Acts which relate to the maj i a g men in Heller. First, the scope and content of the system laid out in these statutes demonstrates that the Framers considered the militia to be a complete cheme mean f lfill he na i n mili a need . The militia of early America bore all the hallmarks of a state military, except membership was through the compulsory universal service of citizens rather than by volunteer professionals. This fits neatly into the federalism model of sovereign states, with their own commanders-in-chief, who are suborned to a federal commander-in-chief under certain constitutionally-mandated circumstances. Second, Justice Scalia argues that the reference to militia in the Sec nd Amendmen i i ele an beca e he e le m efe e e member of political community. 71 However, as these statutes spell out, nearly every member of the political community was legally obligated to be a f he mili ia. J a he e le em e ed ch e membe f he House in Article I. § 2 did not include minors, African-Americans, or women, the Acts only apply to people of a certain age, race, and sex.72 In other words, with the reasonable exception of persons too old or infirm to serve in the field, or those already employed in vital public roles, every person who could
66 Id. § 5. 67 Id. § 6. 68 Id. 69 Id. 70 Id. 71 District of Columbia v. Heller, 554 U.S. 570, 579 (2008). 72 C.f. Id. ( eading Th ee i i n f he C n i i n efe he e le in a c n e he han igh . . . 2 f A icle I iding ha he e le ill ch e membe f he H e ) (in e nal parentheses omitted). 18 THE DARTMOUTH LAW JOURNAL VOL. XVII:1
legall e in ea l Ame ica a al legall a f he ell eg la ed mili ia. The e m f hi membe hi e e not in the least bit n ecified. 73 As the statutes imply, organizing and maintaining their militia was one of the central concerns of every early-American town, and the militia itself was arguably the most energetic civic organization in the early Republic.74 The implications for Justice Scalia c ncl i n a e ignifican . Contemporary to the ratification of the Second Amendment, the vast majority of the voting body politic were members of the federally-organized and -regulated militia as a matter of law; the type of arms they were obligated to keep and bear were mandated by federal authority, and the cost of which was subsidized via a tax credit. The individual records of these militiamen and their weapons were collected and reviewed by the military secretary to the state executive. The inescapable conclusion, then, is that the right to keep and bea a m a in in icall and in e a abl linked he ell eg la ed mili ia f he Sec nd Amendmen . The f ll ing ec i n ill dem n a e that this has always been the case in English common law, and that from its inception, the right to keep and bear arms has been an obligation related to national security as much as a right.
B. JAMES II, BLACKSTONE, AND THE ORIGINS OF THE RIGHT TO BEAR ARMS
Apart from a gross oversimplification of the early American militia em, he maj i a em ace he igin f he igh bea a m from the English also shows lapses of interpretation. When Justice Scalia discusses the rights of Protestant Englishmen to bear a m e el f ce b f ce, he ign e ha hi a nambig l a ma e f a e ec i .75 More specifically, it was a service owed by loyal subjects to the Protestant state of England. The cardinal sin of James II was not abusing the rights of his subjects, but subverting the interests of the Protestant-majority in favor of Catholic- min i e . The eamble f he Engli h Bill f Righ e lici l a as much, and every crime enumerated thereafter is either an effort to undermine the democratic authority of Parliament or subvert the Church of England in favor of the Church of Rome.76 This reading is reinforced by the
73 Id. at 580. 74 See EVELYN M. WOOD LOVEJOY, HISTORY OF ROYALTON, VERMONT WITH FAMILY GENEALOGIES 1769-1911 416-437 (1911) (discussing the substantial attention the townspeople and the Selectboard paid he n mili ia d ing Ve m n c l nial e i d a an inde enden republic, but after having joined the Union). 75 Id. at 592-593. 76 See generally English Bill of Rights, 1 W. & M. s. 2, c. 2 (1689) (laying out the alleged crimes of James II against Parliament and the Church of England). SPRING 2019 THE DARTMOUTH LAW JOURNAL 19
fact that the English Bill of Rights discusses the right to bear arms as something properly retained only by the Protestant polity while properly denied to Catholics. Specifically, in the charges against the Catholic King James: Whereas the late King James the Second . . . did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom[.] . . . By causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law.77
Now compare the motive ascribed to James II with the promise extracted from the new king: And whereas the said late King James the Second having abdicated the government and the throne being thereby vacant, his Highness the prince of Orange (whom it hath pleased Almighty God to make the glorious instrument of delivering this kingdom from popery and arbitrary power) did [cause Parliament to be assembled] in order to make such an establishment as that their religion, laws and liberties might not again be in danger of being subverted[.] . . . That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.78
The offense here was not the act of disarming certain subjects, but a threat to the entire status quo of the Protestant English state. In Britain, the suppression of the Catholic minority was the most pervasive internal political struggle during this period, and the whole popular political history of Great Britain wove a narrative of Catholic subversion of the Protestant kingdom.79 Justice Scalia offers that the right to self-defense was an established fact of English common law in the eighteenth century and cites Blackstone in support.80 Still, he fails to draw any connection to the reason the right to bear arms was included in the English Bill of Rights. By quoting one
77 Id. at X1 78 Id. at X2 79 CHRISTOPHER DUFFY, THE 45 32-36 (2003). 80 District of Columbia v. Heller, 554 U.S. 570, 593-594 (2008). 20 THE DARTMOUTH LAW JOURNAL VOL. XVII:1
sentence outside of a much larger context, Justice Scalia presents a fundamentally misleading image of how Blackstone discussed the right.81
1. Blackstone s Rights
In his Commentaries, William Black ne iden ified h ee ab l e igh f indi id al , ch [ igh ] a ld belong to their persons merely in a state of nature, and which every man is entitled to enjoy whether f cie in i . 82 These are (1) the personal security of life and limb, (2) liberty of movement and action, and (3) the free use, enjoyment, and disposal of property. 83 These are clearly the same unalienable rights referenced in the Declaration of Independence and the language of the Fifth and Fourteenth Amendments. Beyond these absolute rights, Blackstone f he iden ifie fi e a ilia b dinate rights of the subject, which serve principally as barriers to protect and maintain inviolate the three great ima igh [.] 84 These are: (1) Parliament, (2) limitations on the executive authority of the monarch, (3) the right to apply to the courts for the redress of injuries, (4) the right to petition parliament or the monarch for the redress of grievances, and (5) having arms for defense.85 Contrary to Justice Scalia claim, Black ne he e e lici l iden ifie he e f he igh to bear arms as defense of collective liberty. The actual language used by Blackstone is unambiguous: The fif h and la a ilia igh f he bjec i ha f having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the [English Bill of Rights] and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.86
Wi h he di ec efe ence he Engli h Bill Righ , he i lence f e i n i clea l an all i n he li ical e i n c mmi ed b James II: i.e. oppression exerted by one class upon another. Furthermore, Blackstone explicitly states that every person was entitled to enjoy absolute igh he he f cie in i , im l ing ha he e a ilia igh were social rights. Had the ever-longwinded Blackstone understood the right
81 Id. at 594. 82 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 119, (1st ed. 1765). 83 Id. at 125-135. 84 Id. at 136. 85 Id. at 136-139. 86 Id. at 139 (emphasis added).1 SPRING 2019 THE DARTMOUTH LAW JOURNAL 21
to bear arms as having the dual purpose of personal as well as national defen e, he ce ainl ld ha e aid . A i and , Black ne discussion of the right to self-defense makes no reference to arms at all.87
2. Blackstone s Rights as Understood by the Framers
The Framers consciously imitated the legal language used by eminent contemporary scholars such as Blackstone. One need not look f he han life, libe , and e ."88 Thi ca d b n he maj i a e i n ha a igh f he e le can nl efer to an individual right beca e Black ne li f b dina e igh f he ( ing la ) bjec includes Parliament itself. 89 Simply put, eighteenth-century writers were semantically very comfortable ascribing collective actions or institutions to individuals, however awkward this may seem to the modern reader. Under the circumstances, the language in both Blackstone and the English Bill of Rights can only imply Protestant English subjects acting collectively to protect their democratic institutions from monarchical excesses. A further example of this semantic practice and J ice Scalia unfamiliarity with it is in the language surrounding defense. It seems that the majority accepts prima facie ha an e f he d defen e ha i not expressly characterized as national in scope necessarily implies personal, bodily defense.90 In c n em a ce , h e e , elf-defen e i m e often used in a collective sense. Alexander Hamilton used the term in exactly hi a : If he e e en a i e f he people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government . . . against the a i n f he na i nal le [.] 91 Granville Sharp, another contemporary source which Justice Scalia cited, but misinterpreted, is even more explicit about characterizing this right of defense as a social action.92 Man being, by nature, a social creature, it is natural for him to associate with his brethren and neighbours, for common defence against all unjust violence; and such association being just and reasonable, as well as natural, we have not only the right thus to associate, but are even bound to do it, by a branch of the common-law, which cannot legally be changed: for it is
87 Id. at 126. 88 See U.S. CONST. amend. V ( eading n hall an e n . . . be de i ed f life, libe , e , i h d e ce f la [.] ). 89 District of Columbia v. Heller, 554 U.S. 570, 579 (2008). 90 Id. at 600-602. 91 THE FEDERALIST No. 28 (Alexander Hamilton) (emphasis added). 92 District of Columbia, 554 U.S. at 593. 22 THE DARTMOUTH LAW JOURNAL VOL. XVII:1
fixed upon all men, in their respective districts and counties, as an indispensable duty, by the law of nature and nations[.]93
The support which the majority draws from commentators such as St. George Tucker and William Rawle simply compounds his dubious original reading that the right to self-defense is unequivocally an individual right.94 Sharpe takes us a step further in our analysis because he characterizes the right of defense as both a right and a common-law duty. Blackstone connects these two idea h : [The mili ia] i he c n i i nal ec i , hich la have provided for the public peace, and for protecting the realm against foreign or domestic violence; and which the statutes declare is essentially necessary to the safety and prospe i f he kingd m. 95 If the Second Amendment memorialized a long-established common law right, as Justice Scalia asserts, then it must have also implied this same legal obligation. These two facts, (1) that the right to bear arms was inherently a collective right to resist oppression, and (2) that the right to resist oppression was a duty, mean the right to bear arms is inseparable from the militia as the lawful and obligatory vehicle for such use of force.
C. APPLYING THE HISTORY TO THE HELLER OPINION
From the history of the common law right to bear arms, it is difficult to conclude that the English Bill of Rights was reserving a personal right to its citizens rather than enshrining an established method of its own preservation. The strongest conclusion, therefore, is that Blackstone is speaking of individuals acting collectively to defend the institutions which afeg a d hei indi id al ab l e libe ie , c ndi i ned n adhe ence the state religion. It was an individual right insofar as it was the right of Protestants to protect themselves from marauding bands of armed Catholics. More important than the form it took as the militia, the right to bear arms was an integral part of the political philosophy of liberal democracy, which placed paramount importance on the sanctity of life and limb, the liberty of self-determination, and the enjoyment of property. The following section will examine how the right and duty to bear arms became a fundamental part of liberal democracy, how it was discussed at the time, and the many implications this history has on our understanding of the Second Amendment.
93 GRANVILLE SHARP, TRACTS CONCERNING THE ANCIENT AND ONLY TRUE LEGAL MEANS OF NATIONAL DEFENCE, BY A FREE MILITIA 5-6 (1781) (internal quotation marks omitted). 94 District of Columbia, 554 U.S. at 606-609. 95 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 400 (1st ed. 1765). SPRING 2019 THE DARTMOUTH LAW JOURNAL 23
IV. THE INTELLECTUAL HISTORY OF THE MILITIA
Many scholars legal scholars in particular problematically view he F ame h gh a imele and imm able truisms, bereft of the pesky confines of historical context. This issue is exacerbated by the fact that the Framers considered themselves to be tapping into self-evident truths, rationally deduced from an ordered creation. This is what was meant in contem a i ing b na al la . 96 Unfortunately, this view misses the fact that the end of the eighteenth century was a categorical inflection point in the history of Western thought. Politically, the world was shifting away from monarchical authoritarianism towards liberalized national democracy.97 The United States was the first example of this new form of government, followed a decade later by the French Republic. Philosophical thought was evolving from the rationalism of the Enlightenment into the empiricism of the Industrial and Scientific Revolutions. 98 The changes underway in systems of warfare and national defense were no less revolutionary. Without the context of this moment, it is impossible to truly understand the meaning of the Second Amendment. The idea that the military should pledge loyalty to the people and not the executive may seem axiomatic today, but in the late-eighteenth century, this was an openly debated question. Conservatives of the day supported the authority of the monarch as the font of law, having been delegated that authority by God, a philosophy referred to as the divine right of kings.99 As such, the military, as well as the people, properly owed allegiance to the king only. Liberal thinkers, such as Blackstone and the Baron de Montesquieu, believed that the monarch was the subject of the law, not its inviolate source.100 This political philosophy, enshrined in the founding documents of
96 See Cal in Ca e (1608) 77 Eng. Re . 377, 392, reprinted in 1 SELECTED WRITINGS AND SPEECHES OF SIR EDWARD COKE 195 (S e e She a d ed. 2003) ( The la f na e i ha hich God at the time of creation of the nature of man infused into his heart, for his preservation and direction; and this is lex aeterna (e e nal la ), he m al la , called al he la f na e. ). 97 See generally CHRISTOPHER HIBBERT, TWILIGHT OF PRINCES (1974) (discussing the decline and eventual disappearance of absolute monarchies since 1600 AD). 98 See generally IMMANUEL KANT, CRITIQUE OF PURE REASON (1781) (examining the limits of rational, a priori knowledge compared to empirical knowledge). 99 See JAMES VI OF SCOTLAND, BASILIKON DORON 18 (1598) ( eading [The king] acknowledgeth himselfe ordained for his people, having received from God a burthen of gouernment, whereof he must be countable[.] ). 100 See 1 BLACKSTONE, a *237 ( eading [O]ne f he inci al b l a k f ci il libe , (in he d ) f he B i i h c n i i n, [i ] he limi a i n f he king e ga i e b b unds so certain and notorious, that it is impossible he should ever exceed them, without the consent of the e le, n he ne hand[.] ); see 1 CHARLES DE SECONDAT, BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS 202 (Thomas Nugent trans., 2d ed. 1752) (reading A , in a c n f libe , e e man who is supposed a free agent ought to be his own governor, the legislative power should reside in he h le b d f he e le. ). 24 THE DARTMOUTH LAW JOURNAL VOL. XVII:1
Great Britain, the United States, and the First French Republic, asserts that sovereign authority derives from the consent of the people.101 Thus, the military ultimately owes allegiance to the people themselves. This debate, about where the mili a allegiance la , c ea ed separate schools of thought as to how a system of national defense should operate. The conservative school supported the status quo, which used small militaries comprised of professional soldiers who were essentially the personal retainers of the monarch. Liberalism, conversely, offered a radical alternative. The only safe method of avoiding tyranny was a system of obligatory national service, making the people and the military one-in-the- same. This philosophy was put into practice in many nations. In the early years of revolutionary France, this philosophy coalesced into the Levée en Masse, a national system of conscription by lottery and the precursor to the modern Draft. 102 In royalist Prussia, necessity created the Landwehr, wherein every subject was trained and equipped as a national reserve ready to be mobilized.103 In the United States, it was the militia. Justice Scalia, along with many modern observers, characterized the militia as a home guard or auxiliary force meant to supplement a standing army.104 But this reading of the Constitution largely ignores the intellectual history of the moment. Justice Scalia cites a definition of militia from Noah Web e 1828 dic i na einf ce hi eading f an a med lation. The militia of a country are the able bodied men organized into companies, regiments and brigades, with officers of all grades and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupa i n . 105 However, he omits the first half of the entry: The b d f ldie in a a e enrolled for discipline, but not engaged in actual service except in emergencies; as distinguished from regular troops, whose sole occupation is war or military service. 106 Therefore, the only immediate difference between a militiaman and a soldier is that the militiaman is only engaged in national defense part-time, and thus is a citizen
101 See Engli h Bill f Righ , 1 W. & M. . 2, c. 2 (1689) ( eading Whe ea he late King James the Second . . . did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom . . . By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without con en f Pa liamen ; ); see THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (reading G e nmen a e in i ed am ng Men, de i ing hei j e f m he c n en f he g e ned[.] ); see CONSTITUTION DE L AN I June 24, 1793, art. 25 (France) (reading The e eign e ide in he e le; i i ne and indi i ible, imprescriptible, and inalienable. ). 102 JOHN R. ELTING, SWORDS AROUND A THRONE: NAPOLEON S GRANDE ARMÉE 34 (Da Capo Press, 1997). 103 GORDON A. CRAIG, THE POLITICS OF THE PRUSSIAN ARMY 1640-1945, 59-61 (Oxford, 1964). 104 District of Columbia, 554 U.S. at 597-598. 105 Militia, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1st ed. 1828) cited in District of Columbia, 554 U.S at 595. 106 Id. (emphasis added). SPRING 2019 THE DARTMOUTH LAW JOURNAL 25
first. Rhetorically, the debate between an army of soldiers and militia of citizens became a debate between tyranny and liberty. The Second Amendment is a positive declaration by the Framers on which side of the debate the new country would land.
A. SOLDIERS IN THE EIGHTEENTH CENTURY
Eminent historian Michael Howard divided the martial history of Europe into seven epochs, and the American Revolution sits at the very end of what he refers to as the Wa f he P fe i nal . 107 Before this moment, the armies of Europe were small and manned primarily from a distinct ldie cla . 108 Af e , E e a mie e e en ed h le na i nal populations, pressed or otherwise obligated to serve the nation in its time of need.109 H a d ldie cla a a c he en hie a ch f men i h a distinct sub-culture of their own, set apart from the rest of a community not only by their function but by the habits, the dress, the outlook, the interpersonal relationships, the privileges, and the responsibilities which that f nc i n demanded. 110 In the monarchies of the day, this distinction be een ldie and bjec f en mean ha ldie had li le attachment to the population of the state and had few qualms abo e ing a an in men , n nl f e e nal defen e b f in e nal c m l i n. 111 The soldier class also stretched across borders; armies were generally multinational and often multilingual. It was perfectly common and acceptable for soldiers to serve a foreign monarch, or to serve multiple monarchs throughout their careers, but this often reinforced their image as lawless mercenaries. The Bourbon kings of France, for example, employed regiments which were ethnically French, Spanish, Dutch, Swiss, German, Irish, and Walloon.112 Marshal Maurice de Saxe, the illegitimate son of the German King of Poland, was one of the most trusted commanders to F ance L i XV.113 Prior to joining the French service, Saxe had also served in the Austrian Imperial Army and the Reichsarmee of the Holy Roman Empire.114
107 MICHAEL HOWARD, WAR IN EUROPEAN HISTORY 75 (Updated ed. 2009). 108 Id. 109 Id. at 75-93. 110 Id. at 54-55. 111 Id. at 55. 112 See Generally RECUEIL DE TOUTES LES TROUPES QUI FORMENT LES ARMEES FRANCOISES,(Chez Gabriel Nicolas Raspe, 1762). 113 JON MANCHIP WHITE, MARSHAL OF FRANCE, THE LIFE AND TIMES OF MAURICE DE SAXE 3 (1962). 114 Id. 26 THE DARTMOUTH LAW JOURNAL VOL. XVII:1
Donald McBane was a Scottish soldier, duelist, fencing master, and gene al ne e -do-well who fought under the Duke of Marlborough during the War of Spanish Succession (1701-14).115 In 1711, hile he D ke a m was fighting near Douai in northern France, McBane was captured by a French patrol and taken to their headquarters.116 Typical for the day, McBane was casually enlisted into the French army and quickly assimilated into his new unit.117 Yet, ever the reprobate, he wounded several French soldiers in duels (over gambling and women) and was summarily returned to the British as more trouble than he was worth.118 The Luck of Barry Lyndon, by William Makepeace Thackeray, gives another illustrative example. Based on a real person and set during the Seven Yea Wa (1756-1763), the eponymous Redmond Barry, born in Ireland, flees to the British army after accidentally murdering a romantic rival in a duel. While on campaign in Germany, Barry tries to desert but is discovered by an officer from the allied Prussian army. Rather than returning him to the British, the officer presses him into Prussian service for the rest of the war.119 Unsurprisingly, this identity as stateless mercenary-oppressors whether fairly earned or not meant that soldiers were not viewed kindly by civilians. Popular opinion compared the life of a soldier to that of a lowly servant, which rendered soldiers dull-witted and easily coerced by the hope of reward or the fear of punishment. In 1792, early-feminist Mary Wollstonecraft compared the subjugation of soldiers to that of women, with a similar detrimental effect on their intellectual development. Standing armies can never consist of resolute, robust men; they may be well disciplined machines, but they will seldom contain men under the influence of strong passions, or with very vigorous faculties. And as for any depth of understanding, I will venture to affirm, that it is as rarely to be found in the army as amongst women[.]120
These vignettes speak to the popular image of soldiers in the Eighteen century: roguish, dangerous, sometimes dashing and romantic, sometimes detestable, and largely incapable of being productive members of society. The respect and legitimacy of national service, common today, was absent and pejoratively identifying soldiers as the slaves of kings became a
115 DONALD MCBANE, THE EXPERT SWORD-MAN S COMPANION WITH AN ACCOUNT OF THE AUTHORS LIFE, AND HIS TRANSACTIONS DURING THE WARS WITH FRANCE (James Duncan, Glasgow 1728) reprinted in HIGHLAND SWORDSMANSHIP 28 (Mark Rector ed. 2001). 116 Id. at 44. 117 Id. 118 Id. at 45. 119 WILLIAM MAKEPEACE THACKERAY, THE LUCK OF BARRY LYNDON (1844). 120 MARY WOLLSTONECRAFT, A VINDICATION OF THE RIGHTS OF WOMEN 43 (3d ed. 1796). SPRING 2019 THE DARTMOUTH LAW JOURNAL 27
common rhetorical device. Representative Jean Ma ie C ll d He b i argued before the revolutionary French National Assembly that the zealous citizen-armies of the Republic did not even need firearms to overcome slave- ldie : Wha dela d c i n f a m i he d agging ine f man fac e . . . . I n i he ba ne , c ld eel, ha make he F ench superior to the slaves of the tyrants? 121 Mary Wollstonecraft too invoked hi he ic, de c ibing a ldie nif m a [a]n ai f fa hi n, hich i eall a badge f la e , h ing ha he l d e n ha e a ng indi id al cha ac e [.] 122 Early American poet and polemicist Philip Freneau made liberal use of the d la e de c ibe ldie and m e generally those who opposed republican liberty. . . . But h ld all E e la e c mbine against a cause so fair as thine . . .123
Ame ican! When in c n ca e Y ma ch d, and da d he Engli h li n ja , C h d He ian la e , and made hei h e ea , Say, were you not Republican complete? . . . Monarchs and slaves too long disgrace this age; But thou, Republican, that some disclaim, Shalt save a ld, and damn a an fame.124
The world must fall if she must bleed; and e , b Hea en! I m d hink, The ld a ne e bd ed b la e Nor shall the hireling herd succeed.125
The appellation is even found in the rarely-sung third stanza of Francis Scot Ke S a -Spangled Banner. No refuge could save the hireling and slave From the terror of flight, or the gloom of the grave: And the star-spangled banner in triumph doth wave, O'er the land of the free and the home of the brave.
121 PADDY GRIFFITH, THE ART OF WAR IN REVOLUTIONARY FRANCE 216 (1998). 122 WOLLSTONECRAFT, supra note 120, at 27. 123 PHILIP FRENEAU, On the Demolition of the French Monarchy, in 3 POEMS OF PHILIP FRENEAU: POET OF THE AMERICAN REVOLUTION 88 (Fred Lewis Pattee ed. 1907). 124 PHILIP FRENEAU, On the French Republicans, in 3 POEMS OF PHILIP FRENEAU: POET OF THE AMERICAN REVOLUTION 88 (Fred Lewis Pattee ed. 1907). 125 3 PHILIP FRENEAU, THE POEMS OF PHILIP FRENEAU: POET OF THE AMERICAN REVOLUTION 73 (Fred Lewis Pattee ed. 1907). 28 THE DARTMOUTH LAW JOURNAL VOL. XVII:1
This line is sometimes interpreted as condemning American slaves who fought with the British in exchange for their freedom.126 But, as the above examples demonstrate, it is fully in keeping with the rhetoric of the time to de c ibe f eign ldie a hi eling and la e in c n a i h free citizens fighting for their home and country.
B. THE POLITICS OF SOLDIERS
Naturally, this deep dislike and popular mistrust of professional soldiers became a popular theme amongst political theorists as well. The political philosophy of Liberalism, for instance, was critical of professional soldiers as a class for their role of propping up the old authoritarian order. In the Liberal analysis, the natural antithesis of the professional soldier was the citizen soldier. The professional soldier was motivated only by greed or fear (so the theory goes), whereas the citizen sought to protect his family, home, and personal liberties. Montesquieu neatly summarizes both these points: To prevent the executive power from being able to oppress, it is requisite that the armies with which it is entrusted should consist of the people, and have the same spirit as the people, as was the case at Rome till the time of Marius. To obtain this end, there are only two ways, either that the persons employed in the army should have sufficient property to answer for their conduct to their fellow-subjects, and be enlisted only for a year, as was customary at Rome: or if there should be a standing army, composed chiefly of the most despicable part of the nation, the legislative power should have a right to disband them as soon as it pleased[.]127
By the time of Ame ica f nding, hi l k had c me f ll ma i in the English common law. As Blackstone says: In a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. In absolute monarchies this is necessary for the safety of the prince, and arises from the main principle of their constitutions, which is that of governing by fear: but in free states the profession of a soldier, taken singly and merely as a profession, is justly an object of jealousy. In these no man should take up arms, but with a view to defend
126 Alexei Koseff, Remove ‘The Star-Spangled Banner as national anthem, California NAACP urges, SACRAMENTO BEE (Nov. 8, 2017), https://www.sacbee.com/news/politics- government/capitol-alert/article183262411.html 127 1 CHARLES DE SECONDAT,& BARON DE MONTESQUIEU, DE L ESPRIT DES LOIX [THE SPIRIT OF THE LAWS] 229 (Thomas Nugent trans., 2d ed. 1752). SPRING 2019 THE DARTMOUTH LAW JOURNAL 29
his country and its laws . . . it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier. The laws therefore and constitution of these kingdoms know no such state as that of a perpetual standing soldier, bred up to no other profession than that of war[.]128
To assuage any doubt that this idea was the primary motivation behind the Second Amendment, the sentences which immediately follow both these passages place the idea in its constitutional context. Montesquieu writes, [T]he ldie h ld li e in c mm n i h he e f he e le; and n separate camp, barracks, or fortress, should be ffe ed. 129 Blackstone adds, [T]he ldie al h ld li e in e mi ed i h the people; no separate camp, n ba ack , n inland f e e h ld be all ed. 130 This insistence that soldiers must be quartered with the population, because segregating soldiers from the population at large would be inconsistent with a free society, is the origin of the enigmatic Third Amendment of the United States Constitution. The fact that these two ideas are linked and presented in the same order by two of the founders of Liberalism and by the Framers of the Constitution should not be overlooked. As was typical of the era, both Blackstone and Montesquieu looked to classical history for guidance and moral wisdom. The Roman descent from a noble republic to a despotic empire was a regular case study. Likewise, classical models were actively imitated in early America. For example, the Society of the Cincinnati was founded in 1783 as a fraternal patriotic society for officers who had served during the Revolutionary War with George Washington as its first president-general.131 Cincinna i i he l al f Cincinnatus, an early-Roman general who came out of self-imposed exile when called to defend Rome from imminent attack. Granted the absolute authority of a dictator to handle the emergency, Cincinnatus raised the Roman militia, crushed the invaders, then promptly surrendered his leadership to return to his farm, having held unlimited power for just fifteen days.132 Washington was frequently compared to Cincinnatus as a paragon
128 1 BLACKSTONE, supra note 82, at 395. 129 1 SECONDAT & MONTESQUIEU, supra note 127, at 229. 130 1 BLACKSTONE, supra note 82, at 395. 131 See History, SOCIETY OF THE CINCINNATI, (Aug. 3, 2018), https://www.societyofthecincinnati.org/about/history The city of Cincinnati, Ohio was named in h n f he S cie b A h S . Clai , a Re l i na Wa gene al and he S cie ec nd president-general. 132 3 LIVY, AB URBE CONDITA, §§ 28-29. 30 THE DARTMOUTH LAW JOURNAL VOL. XVII:1
of republican virtue, and Lord Byron went so far as to name Washington the Cincinna f he We h l af e hi dea h.133 Before the time of Gaius Marius (as referenced by Montesquieu above), the Roman military operated as a popular militia, wherein all citizens were equally liable to be conscripted into temporary legions in a time of national need. 134 Indeed, the word legio legi n literally means le . 135 However, around 80 BC, Marius instituted a series of reforms which professionalized the legions of the Roman Empire. 136 These legionaries "perpetual standing soldier[s], bred up to no other profession han ha f a were more loyal to their generals than to the Senate and People of Rome. This structural change cemented the way for the tyranny of the Cae a . D ing he em i e eign, he legi n f en c ned e laced sitting emperors as they saw fit, and with a de facto monopoly on violence, there was little anyone could do to stop them. Blackstone agreed with M n e ie a e men : [I] i e isite that the armies with which [national defense] is entrusted should consist of the people, and have the same spirit with the people; as was the case at Rome, till Marius new- modeled the legions by enlisting the rabble of Italy, and laid the foundation f all he mili a ann ha en ed. 137 As officers of the Revolution self- identified with heroes of republican Rome, the cautionary tale of Marius must have carried special weight for the Framers of the Republic. Both Montesquieu and Blackstone saw the same lesson in Rome: a great republic brought down when military power shifted from citizens, personally invested in the welfare of the state, to dispassionate soldiers, loyal to no one but their general and paymaster. Surely then, the way to restore or create liberty in contemporary Europe was to return the locus of military force to the people. And, the only way to preserve a state of liberty was to reserve the monopoly on force to the people. In the American context, consider this statement on the value of the state militia by Governor Galusha of Vermont from 1810: [The Militia] are the guardians of our rights, the repository of our liberties, and the bulwark of our independence. Mercenary troops may be led to destroy the fair temple of liberty, to trample on the rights of freemen, and trifle with the rights of their coun men; b he mili ia, ha ing a c mm n in e e with their fellow citizens, their property, their wives, their children, and their all, equally depending on the laws and the
133 Lord Byron, Ode to Napoleon Buonaparte (1814), reprinted in 2 COMPLETE WORKS OF LORD BYRON 480 (Paris 1852). 134 PETER CONNOLLY, GREECE AND ROME AT WAR 95 (1998). 135 Legere, legio, Oxford Latin Dictionary (2d ed. 2012). 136 Id. at 210. 137 1 Blackstone, supra note 82, at 401. SPRING 2019 THE DARTMOUTH LAW JOURNAL 31
fate of their common country, can never be made to surrender the blessings of freedom and the rights of independence to any foreign or domestic usurper.138
The necessity of the militia was self-evident based on history, natural law, and practical experience; keeping and bearing arms in an organized militia was the constitutional grantee of this right.
C. APPLYING THE INTELLECTUAL HISTORY TO THE HELLER OPINION
By this history, the Second Amendment represents a civic obligation as much as a right: the duty of a citizen to protect their own liberty from a government which no longer has the consent of the people. Thus, the reference to the militia in the Second Amendment cannot be viewed in isolation simply because it is separated from the right to bear arms by a comma. Consider, for a moment, that the Second Amendment is the only provision in the Bill of Rights with a statement of purpose. As Justice Scalia acknowledged, a close reading shows that, outside of the preamble, the Second Amendment contains the only statement of purpose, prefatory or otherwise, in the modern Constitution.139 To the Framers, the right to bear arms and the militia were different aspects of a single idea, linked by history, reason, and statute. This view is fully consistent with the other constitutional references to the militia. Justice Scalia is quick to point out the difference in the Constitution between the militia and national service in the army, but here again he builds his argument on a vacuous distinction. The United States C n i i n g an C ng e he a h i ai e and Armies. 140 As evidenced b he l al, he d a m did n ha e he ame ni a meaning in 1789 a he U.S. A m d e da . L k again Web e 1828 dic i na : ARMY; A c llec i n b d f men a med f a , and organized in companies, battalions, regiments, brigades and divisions, under proper officers. In general, an army in modern times consists of infantry and ca al , i h a ille [.] 141 Along with the similarities to the definition of mili ia ci ed ab e, b h f Web e defini i n a e nea l identical to the structure of the militia laid out in the Second Act; i.e. organized companies, battalions, regiments, brigades and divisions, with attached cavalry and
138 Executive Speech of Jonas Galusha, 5 RECORDS OF THE OF THE GOVERNOR AND COUNCIL OF THE STATE OF VERMONT 404-405 (1810) available at https://www.sec.state.vt.us/media/48680/Galusha1810.pdf. 139 District of Columibia, 554 U.S. at 578. 140 U.S. CONST. art. I, § 8, cl. 12 (emphasis added). 141 AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1st ed. 1828). 32 THE DARTMOUTH LAW JOURNAL VOL. XVII:1
artillery. Here, it seems Justice Scalia unintentionally uses a modern reading and confla e an a m f m A icle I i h the A m f da . Justice Scalia is also too quick to assert that the Constitution explicitly assumes that the militia already exists, while armies and navies ld ha e be c ea ed f n hing.142 While ai e can and did at ime im l c ea i n, D . J hn n Dic i na incl de he f ll ing defini i n: T c llec ; a emble; le . He f he malle hing could without end, Have rais d ince an a mie . Mil n. 143 And Webster: T le ; collect; to bring into service; as, to raise troops; to raise an a m . 144 Therefore, it is likely that the Framers intended an army to be raised by levying the militia and disbanded when the crisis was over. Seman icall , he nl diffe ence be een he mili ia and an a m in he constitutional context is whether or not they are intended to serve outside of their home state. The militia and an army were different parts of the same system, and the citizen soldier was the common element. The United States method of government was a radical departure from the status quo of the Eighteenth century. The Netherlands and Venice were republics in a limited sense, and Great Britain had succeeded to some degree in suborning its monarch to the will of semi-democratic institutions. Nevertheless, the vast majority of power in the world at the end of the eighteenth century was held by a small number of autocrats. In an autocracy, bearing arms, whether in the military or to resist invaders, was a privilege granted or withheld at the whims of the monarch. In writing the Constitution, the Framers proclaimed loudly that the new Republic would reject the autocracy of the past for the liberty of the future. Positively stating that participating in national defense was the right and obligation of the citizen was just as necessary as saying that voting or serving in the government was an obligatory right of the citizen.
V. CONCLUSION
Justice Antonin Scalia insisted that there are no rights in the Constitution that can be exercised only as part of a corporate body. 145 However, history paints the right to bear arms as a tool to ensure the security of a free state. In contemporary sources, the idea of personal protection is almost completely absent. Perhaps a more relevant observation is that there are no rights in the Constitution which permit an individual to resist the government alone. Ultimately, the right to resist is a check to ensure that a
142 District of Columbia, 554 U.S. at 596. 143 JOHNSON S DICTIONARY OF THE ENGLISH LANGUAGE (1st ed. 1755). 144 AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1st ed. 1828). 145 District of Columbia, 544 U.S. at 579. SPRING 2019 THE DARTMOUTH LAW JOURNAL 33
government remains democratic. Resistance is only lawful when a segment of society imposes its will on the majority, either by direct force or by subverting democratic institutions. The idea that an individual or minority group could resist the will of the majority by force is precisely the calamity the right to bear arms was intended to prevent. Returning to the example of James II, the wrong of disarming Protestants and arming Catholics was in reserving the use of force to a segment of the population that was loyal to the monarch. By contrast, an entire people rising collectively in resistance is a ju ifiable ac , in kee ing i h he la f na e and f na e G d. Unde this principle of liberty and just governance, the existence of the militia was itself a democratic institution which placed the actual locus of force with the people. All of this begs the question of what happened to the militia. The popular imagination has looked at its vestigial modern remains and assumed that the militia simply faded from importance. This is partially true. The idea that a citizen militia could adequately supply a complete scheme of national defense did not persist for long after the founding. The country quickly had to bow to reality and acknowledge that professional militaries are, in fact, far more effective than citizen militias, despite the rhetoric. But the idea that a citizen has the unalienable responsibility to bear arms in service to the c mm n g d ha h ne b igh l in all na i n c nflic . The mili ia represented a political outlook that argued people, not the government, should be armed, and the Second Amendment affirms that the government does not have the authority to reverse this natural order. Perhaps then, the most informative source on the Second Amendment is neither Blackstone or Montesquieu, but the statement of purpose from the Selective Training and Service Act of 1940, commonly known as the Draft Act. C ng e he eb declares . . . that a in a free society the obligations and privileges of military training and service should be shared generally in accordance with a fair and just sys em f elec i e c m l mili a aining and e ice. 146 The citizen militia is not a thing of the past; it has merely evolved in form. The mili ia a he F ame em en e that the military c n i f he e le, and ha e he ame i i a he e le, a Montesquieu said.147 But, the United States, like many other countries, had to experience a period of trial and error to fully realize this goal and the militia system was ultimately superseded by a more effective one. Today, the fact that popularly elected legislators ultimately control the military, and that modern armed services members pledge loyalty to the nation and the Constitution rather than to the executive, is the legacy of that ideal. While it
146 Selective Training and Service Act of 1940, ch. 720, § 1, 54 Stat. 885. 147 1 SECONDAT & MONTESQUIEU, supra note 127, at 229. 34 THE DARTMOUTH LAW JOURNAL VOL. XVII:1
may differ in form, the modern Armed Services of the United States are e e bi he ci i en mili ia en i i ned b he F ame . And, if he e i a recognizable individual right embedded in the Second Amendment, it is the igh fai and e al acce mili a e ice. The maj i in erpretation that the Second Amendment speaks to no greater purpose than an individual right to be armed in case of confrontation simply cannot coexist with this history.