The Second Amendment on Trial: Critical Essays on District of Columbia v. Heller

Firearms, Militias, and the Second Amendment

310 Z Z Z Z Firearms, Militias, and the Second Amendment Kevin M. Sweeney Z Z Z Z Few images are more embedded in Americans’ historical consciousness than that of the “embattled farmers” of Lexington and Concord who grabbed their guns and gathered to repel the British regulars on April 19, 1775. In particular, Daniel Chester French’s 1875 sculpture of The Minute Man leaving his plow with musket firmly in hand has become iconic, literally so for the NRA. What limited military training these men had came from membership in the colonial militia, which is usually described as having included all males from sixteen to sixty. In spite of—or, as some believe, because of—their limited exposure to drill and martial discipline, these farmers succeeded in besting professional British soldiers. Familiarity with firearms from an early age and individual initiative are assumed to have trumped skills gained on parade grounds and European battlefields. The actions of these eighteenth-century Massachusetts minutemen have come to embody the American ideal of the citizen soldier, and to confirm a popular impression that most adult males in the American colonies possessed firearms and were skilled in their use in combat. But in reality, the performance of these militiamen was specific to a particular historical context and was not typical or representative of that more expansive and often mythic era that is today called “early America.”1 Firearms, Militias, and the Second Amendment 311 The well-known image of The Minute Man is nevertheless a powerful one, as the majority opinion in District of Columbia v. Heller attests. The ruling by Justices Alito, Kennedy, Roberts, Scalia, and Thomas firmly locates its understanding of colonial militias, the uses of firearms during the colonial era, and the likely aims of the Second Amendment in a largely mythical time and place instead of actual eighteenth-century conditions and experiences. The majority opinion treats the use of the word “militia” in the Second Amendment as meaning “all able-bodied men”2 or the “body of all citizens capable of military service,”3 who constituted an unorganized “citizens ’ militia” or a “people’s militia” which was primarily “a safeguard against tyranny.”4 It further assumes that the privately owned firearms of individuals were always the arms of the militia, maintaining that “the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.”5 The handgun in particular is singled out as Americans’ choice “to be the quintessential selfdefense weapon,” and is therefore most worthy of the Second Amendment’s constitutional protection.6 This essay challenges these assumptions of the majority opinion by providing a historical overview of the colonial militias, the variable patterns of private gun ownership throughout the colonies, and the evolving understanding and use of what were seen as appropriate military firearms. Contrary to what the justices believe, there was no unorganized “citizens’ militia” or a “people’s militia.”7 In the 1600s and 1700s, militia service was compulsory, and militias existed only when and where governments passed laws specifying how they would be organized, armed, and disciplined.8 To create and maintain militias, well over six hundred laws were passed by colonial and state governments during this period.9 Despite these laws, not all able-bodied men wanted to or were required to serve in the militia: by the late 1600s, Virginia and Maryland had select militias; in a number of colonies, up to a third of their able-bodied white men from sixteen to sixty escaped militia service; and for most of the colonial period, Delaware and Pennsylvania did not have militias. Colonial militias decayed over the first half of the eighteenth century. During the War of Independence, state governments attempted to reverse this trend as demands on the militias increased and militia service expanded. At the same time, problems with organizing, disciplining, and arming the militias also increased dramatically and became a matter of concern and debate for military and political leaders. 312 kevin m. sweeney Outside of the Delaware Valley (where militias were nonexistent or very weak), gun ownership appears to have been very common during the 1600s and remained widespread during the 1700s.10 But there were still problems in arming the militias arising from costs and personal preferences. As...