Under the
Articles of Confederation, from 1777 on, states were
required to maintain their own “well regulated and disciplined militia, sufficiently armed and accoutered” with “a proper quantity of arms, ammunition and camp equipage.” The states would appoint all officers under the rank of colonel. The confederation Congress was permitted to “requisition” these militias for the “common defence,” but only “in proportion to the number of white inhabitants in such State.” If other states didn’t furnish their share, Congress could ask complying states for more than their proportional share—but the state legislature was guaranteed the power to refuse, even in an emergency. And even when the militia was under federal command, the state legislatures would choose replacement officers as well.
The states were further protected by remarkable supermajority rules: Unless nine states out of 13 agreed, Congress couldn’t declare war, raise an army, or even appoint a “commander in chief of the army or navy.” Even if the nation was invaded, five states could stop any military response; even if the other eight agreed, they would not even be able to appoint a commanding general, much less march against the enemy.
All told, the arms and the military power remained solidly in state hands, with the confederation government taking over only in the direst circumstances, and after humbly asking the states for permission.
In the Constitution of 1787, by contrast, the federal government would control virtually every aspect of war, peace, and military structure. The new Congress could declare war, raise an army, or both, by a bare majority and without consulting the states; Congress was in charge of training and arming the state militias, and could call the militia into service without state permission or even state consultation.
And no more veto over the commander in chief—who would be, by law, the president.
The sole remnant of the states’ power over their own militia appears in Article I § 8 cl. 15, which ended by “reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” And in case there was any doubt about what the federalized militia might be up to, the Constitution provided that it could be called into service “to execute the Laws of the Union, suppress Insurrections and repel Invasions”—that is, perhaps, to march into any state, including its own, to bend its people to the federal will.
All told, the text lays out a stunning power grab. To much of the revolutionary generation, a
standing army was the mortal enemy of freedom and self-government. Those ratifying the Constitution had vivid memories of red-clad professional soldiers—some speaking German—swarming ashore to enforce British tax laws, and then to try to crush the Revolution. Now a new government—without so much as saying “by your leave”—could create such a force at pleasure, and send it, and their own militias, to crush any state that did not obey federal ukase. That must have raised hackles from Lexington to Savannah.
That’s the context. To me it suggests that, in adopting what became the Second Amendment, members of Congress were attempting to reassure the states that they could retain their militias and that Congress could not disarm them. Maybe there was a subsidiary right to bear arms; but the militia is the main thing the Constitution revamped, and the militia is what the Amendment talks about.
One key thing people who haven't studied the history don't get. The Framers were mostly brilliant, but they were also mostly politicians, and they were trying to solve
. At the time the 2nd amendment was ratified, their political problem was whether to create a brand new federal government, and how much of their authority the states would cede to it. That was the ball game. And in particular anti-Federalists wanted to protect state militias that would counter the new federal government's power to make war on them to, I don't know . . . take away their slaves or something. Nowhere in this debate was anyone concerned about appeasing 21st-century ammosexuals.
