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force controlled by the national government. Those at the Constitutional Convention of 1787 who feared too much federal control over the military won two key concessions: first, control over the militias was divided between the states and the federal government; second, militia mobilization by Congress could only occur under the three circumstances listed above.

The overriding necessity for an effective fighting force was keenly felt in the country's early history, as it faced not only hostile European and indigenous forces on all sides, but threats from internal rebellion. As constitutional scholar Max Farrand noted, "Shay's rebellion [January 1787] had taught a much needed lesson. It was not sufficient to place the state militia under some central control. The central government must be empowered to maintain an efficient army and navy to protect the states against internal disorders, as well as against external dangers."

Reflecting the prevailing political view of the time, George Mason also spoke for many at the Constitutional Convention when he said during debate that "He hoped there would be no standing army in time of peace, unless it might be for a few garrisons. The Militia ought therefore to be the more effectually prepared for the public defence." James Madison said that "as the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual provision for a good Militia." At the same time, Madison recognized that the states had often neglected their militias, making them unreliable unless the federal government could impose uniformity and discipline. Mason attempted to codify

*Max Farrand, The Framing of the Constitution of the United States (New Haven, CT: Yale University Press, 1913), p. 49. Charles Pinckney argued that the states would see the wisdom of some degree of federal control over the state militias. For himself, Pinckney had "but a scanty faith in Militia. There must be (also) a real military force--This alone can (effectually answer the purpose.) The United States had been making an experiment without it, and we see the consequence in their rapid approaches toward anarchy (a reference to Shay's rebellion]." Farrand, Records of the Federal Convention, II, p. 332. Theodore J. Lowi and Benjamin Ginsberg assert that "It is quite possible that the Constitutional Convention of 1787 in Philadelphia would never have taken place at all except for. ..Shay's Rebellion." American Government: Freedom and Power (New York: Norton, 1992), p. 39.

'Farrand, The Records of the Federal Convention of 1787, II, p. 326.

Farrand, Records of the Federal Convention, II, p. 388. See also I, p. 465; III, pp. 616-617.

'Farrand, Records of the Federal Convention, II, p. 387. Edmund Randolph said that "the Militia were every where neglected by the State Legislatures, the members of which courted popularity too much to enforce a proper discipline." II,

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the warning against the liberty-eroding tendencies of standing armies when he proposed (unsuccessfully) an amendment to Article I, section 8 to add the phrase "That the Liberties of the People may be the better secured against the Danger of regular Troops or standing Armys in time of Peace," preceding "To provide for organizing arming & disciplining the Militia."

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Many of the issues raised during the Constitutional Convention arose in state ratifying conventions. During the Virginia ratifying convention in 1788, Edmund Randolph (also a delegate to the federal convention) said, "With respect to a standing army, I believe there was not a member in the federal convention who did not feel indignation at such an institution." From a distance of two decades, founder Gouverneur Morris reflected the contrary sentiment in a singularly blunt fashion when he wrote in 1815: "An overweening vanity leads the fond many. . .to believe or affect to believe, that militia can beat veteran troops in the open field and even play of battle. This idle notion, fed by vaunting demagogues, alarmed us [the founders] for our country, when in the course of that time and chance. . .she should be at war with a great power....to rely on militia was to lean on a broken reed."12

Defenders of the new Constitution sought to assuage fears and counter criticisms in the Federalist Papers. In Federalist #24, Alexander Hamilton argued that it would be a mistake to restrict or ban standing armies in times of peace, citing constant threats the young nation faced along its vast frontiers and the necessity of allowing Congress appropriate latitude to meet variable but persistent military threats." In #25, Hamilton argued forcefully that standing armies were naturally superior on the battlefield, the Revolutionary war notwithstanding,1

p. 387.

10Farrand Records of the Federal Convention, IV, p. 59.

"Farrand, Records of the Federal Convention, III, p. 319.

12Farrand, Records of the Federal Convention, III, p. 420.

13 Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (New York: New American Library, 1961), pp. 161-162. Hamilton noted the "constant necessity for keeping small garrisons on our Western frontier" and that it would be impractical to man them with militias (p. 161).

14"The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind." Hamilton, Madison, and Jay, The Federalist Papers, p. 166. He also noted that Pennsylvania and Massachusetts had raised their own permanent military bodies.

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and were similarly superior in dealing with civil unrest (#28)." Further, Hamilton noted in #29 that the federal government must have the power to impose uniformity on the militias in order for them to be effective and efficient. Both he and Madison dismissed the fear that a standing army would deprive the states of their sovereignty, or citizens of their liberties. To "those who prophesy the downfall of the State governments," Madison in #46 computed that the U.S. could at the time raise at best an army of 30,000 men--a force that could be opposed by state militias totalling a half-million men.

The Bill of Rights

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The adoption of the Constitution codified the dual militia-standing army military system, but it did not resolve the nagging question of federalism; that is, the new Constitution not only countenanced a national standing army, but gave the federal government vast new power over the militia. Anti-federalists were extremely concerned that this power might be used not only to undercut the effectiveness and independence of state militias (for example, by federal government refusal to organize, arm or train them, although federalists asserted that the states would retain such powers if the federal government failed to act'), but to gut state power entirely. Convention delegate and anti-federalist Luther Martin predicted nothing less than the demise of the states if the Constitution were adopted with federal control of militias included:

They [supporters of the Constitution] said, that...if the militia was under the control and the authority of the respective States, it would enable them to thwart and oppose the general [federal] government. . . .if after having retained to the general government the great powers already granted, and among those, that of raising and keeping up regular troops without limitations, the power over the militia should be taken away from the States, and also given to the general government, it ought to be considered as the last coup de grace to the State governments; that it must be the most convincing proof, the advocates of this system design the destruction of the

15 An army would be both necessary and desirable, said Hamilton, as a force to insure domestic stability to quell "the unceasing agitations and frequent revolutions which are the continual scourges of petty republics." Hamilton, Madison, and Jay, The Federalist Papers, p. 179.

183.

16Hamilton, Madison, and Jay, The Federalist Papers, pp. 298-299. See also p.

17Peter Buck Feller and Karl L. Gotting, "The Second Amendment: A Second Look," Northwestern University Law Review 61(March/April 1966): 59-60; Farrand, Records of the Federal Convention, III, pp. 209, 285.

These fears found voice in several state ratifying conventions, most particularly that of Virginia, where the anti-federalist cause found no more eloquent champion than revolutionary firebrand Patrick Henry. Profoundly suspicious of the concentrated federal governmental power provided in the new Constitution, Henry spoke for many who preferred a weak national government and strong states when he asked, "Have we [in Virginia] the means of resisting disciplined armies, when our only defence, the militia, is put into the hands of Congress?"19 Henry sought assurance that "With respect to your militia, we only request that, Congress should refuse to find arms for them, this country may lay out their own money to purchase them."20 Setting an example for other states, the Virginia convention passed this wording when it ratified the Constitution:

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That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.

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18Farrand, Records of the Federal Convention, III, p. 209.

19Bernard Schwartz, The Bill of Rights: A Documentary History, 2 vols. (New York: Chelsea House, 1971), II, p. 773.

20Schwartz, The Bill of Rights, II, p. 831.

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21New York, New Hampshire, North Carolina, and Rhode Island all recommended a bill of rights, including wording regarding militias and the right to bear arms. Legislative Reference Service, The Second Amendment as a Limitation on Federal Firearms Legislation (Washington, D.C.: Library of Congress, 1968), p. 5; Stephen L. Schechter and Richard B. Bernstein, eds., Contexts of The Bill of Rights (Albany, NY: New York State Commission on the Bicentennial of the U.S. Constitution, 1990), pp. 112-146.

22Schwartz, The Bill of Rights, II, p. 842. This wording was modeled on Virginia's Declaration of Rights of 1776. The convention also passed resolutions saying "That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead" and "That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same." II, pp. 842, 843. The other states that tacked on militia-related wording when they approved the Constitution used similar

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In short, "the advocates of state sovereignty wished the main reliance to be upon militia, while their opponents [federalists] saw the need for an effective standing army. The central question giving rise to the Second Amendment was

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whether congressional authority over state militias could eclipse that of the state governments and whether this new federal military power (over both the militia and the federal-controlled professional army) might be used to abrogate state sovereignty and power.” While this might seem like an arcane or irrelevant issue to modern Americans, it went to the very core of the dispute over the new Constitution of 1787.

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The pressure for a Bill of Rights to limit federal authority became all but irresistible. On June 8, 1789, Madison introduced in the House of Representatives of the First Congress a proposed list of rights to be added to the Constitution. Drawn heavily from Virginia's 1776 Declaration of Rights,25 the list included this, to be inserted in Article 1, section 9 (a section of the Constitution that lists several limits on the federal government, and that followed the section dealing with military matters):26

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to

language. See Schechter and Bernstein, Contexts of the Bill of Rights, pp. 114 (New York), 127 (New Hampshire), 140 and 142 (North Carolina).

23 John K. Mahon, The American Militia: Decade of Decision. 1789-1800 (Gainesville: University of Florida Press, 1960), p. 6. See also the remarks of Luther Martin to the Maryland ratifying convention in Farrand, Records of the Federal Convention, III, pp. 207-208.

24Keith Ehrman and Dennis A. Henigan, "The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?" University of Dayton Law Review 15(1989): 23. Also J.W. Peltason, Corwin and Peltason's Understanding the Constitution (New York: Holt, Rinehart and Winston, 1988), p. 168.

25 Helen E. Veit, Kenneth R. Bowling, and Charlene Bangs Bickford, eds., Creating the Bill of Rights (Baltimore: The Johns Hopkins University Press, 1991), pp. x, xiv.

26The political price Madison paid to win key federalist support for the Bill of Rights in the House was its separation from the Constitution itself. In particular, Roger Sherman insisted that the amendments not be integrated into the original Constitution, but listed separately at the end. See Veit, Bowling, and Bickford, Creating the Bill of Rights, p. xv.