The Constitutional Militia, Slavery, &
Contemporary “Gun Control”
Monday, June 6, 2005
By Dr. Edwin Vieira, Jr.
NewsWithViews.com
Studying the Colonial and State Militia Acts of the 1600s and 1700s reveals
a stark divergence between the principles of the constitutional "Militia
of the several States" and the principles of contemporary "gun control".
Not entirely obvious, though, yet crucial to the survival of freedom
in America, is what this divergence represents.
The fundamental operational principle of the constitutional Militia is
that everyone who is physically able is required to be armed--with
his own personal military-grade firearm, ammunition, and necessary
accoutrements in his own possession at home--and ready to repel invasions,
suppress rebellions and insurrections, and enforce the laws, especially
against usurpation and tyranny.
The Colonial and State Militia Acts of the pre-constitutional period generally
did exempt from routine Militia musters and training some people who
held high public offices or who engaged in particularly important
professions or trades. Nonetheless, most of these individuals were
required by law to arm themselves and to appear for service during
"alarms". For a typical example, Georgia's Militia Act of 1755 mandated
that
every able Male person from the age of Sixteen to Sixty years who has
once resided & shall be [within] this province for the space of
Three Months (Slaves excepted) is * * * lyable to bear Arms * *
[17] * except the several persons herein after particularly mentioned
who shall be excused and exempted from appearing at General and
Ordinary Musters, * * * (that is to Say) all * * * members of his
Majesty's Council & their Officers, * * * the members of the Assembly
* * * and their Officers, the Chief Justice & Justices of the Court
of common Pleas, the Attorney General, the Attorneys of the said
Court, the Clerk of the Crown and Pleas, the provost Marshall the
Master and Register of the high Court of Chancery * * * , the Judge
of the Vice Admiralty, the Officers of his Majesties Customs, the
Surveyor General of his Majesties Lands in this province, the Clergy,
the Chatechist of Savannah * * * , [the] Public Treasurer, powder
receiver, Comptrollers, Waiters and Commissary, * * * his Majesties
Justices of the peace * * * , Provided, that all the[se] persons
* * * (the members of his Majesty's Honorable Council and of the
Assembly, and their Officers & the pilots and Ferrymen only excepted)
shall in the Time of Rebellion, Insurrection or Actual Invasion,
attend under the proper Colors of the Company * * * , completely
Armed and Furnished * * [18] * , on pain of Forfeiting the Sum of
Ten pounds Sterling.[1]
These
special exemptions, however, were matters of statutory grace, not
of legal right. Militiamen were not volunteers. "[E]very able Male
person from the age of Sixteen to Sixty years" was required to serve.
And to be excused required a special reason recognized by the legislature.
Georgia's
Militia Act of 1755 illustrates the general requirements enforced
throughout the Colonies and independent States, that:
the
Captains * * * shall * * * enlist and enroll, the names of all the
Male Inhabitants of this province, from the Age of Sixteen to Sixty
years * * , and th[os]e persons * * * shall be obliged to appear
at Musters * * * .
* * * [E]very person lyable to appear and bear Arms at any Muster,
exercise or training * * * shall constantly keep * * * at his usual
place of abode, and bring with him at such muster Exercise or training
one Gun or Musquet fit for Service, one Cartridge Box with at least
nine Cartridges filled with good Gun powder and Ball that shall
fit his Piece a Horn or Flask containing at least [12] a
quarter of a pound of Gun Powder and a Shott Pouch with Bullets
proportionable to the Gun powder, * * * one Worm, and Picker, four
spare Flints, a Bayonet Sword or hatchet of the fitness and sufficiency
of which Arms, every Commanding Officer of the Company * * * is
* * * to be the Judge.
* * * [I]n case any person lyable to appear and bear arms * * *
shall neglect or refuse to appear completely armed and furnished
* * * at any General Muster * * * every Such person shall forfeit
& pay a Sum not exceeding ten Shillings Sterling, and in case any
such person shall neglect or refuse to appear * * * at every ordinary
Muster every such person shall forfeit, and pay a Sum not exceeding
five Shillings * * * .
* * *
[I]t shall and may be Lawfull for the Commission Officers * * *
, Six times in a year, * * * at any convenient time of the Day to
repair to the places of residence, of any person or persons, as
well those persons who are obliged to appear, on alarms, as to other
persons lyable to bear arms, * * [13] * and to demand a sight
of their Arms, Furniture, Ammunition and Accoutrements * * * , and
in case persons, shall refuse to produce, any such Arms, Furniture,
Ammunition and Accoutrements, or to Suffer the same to be viewed
and inspected, or if when produced the said Officers shall find
the same defective * * * [they may] Fine every person offending
* * * in any Sum not exceeding five Shillings Sterling * * * .[2]
As
this statute shows, the duty to keep and bear arms had no limitation
or qualification, but obliged every male inhabitant from 16 to 60
years of age to arm himself and appear for musters, training, and
service in the field. The lower and upper boundaries of age the statute
set on the duties to arm, muster, train, and serve were intended only
to reflect practical presumptions about physical ability and psychological
maturity, not to impose arbitrary discriminations. Georgia's Militia
Act specifically called to service men from 16 to 60 years of age
with the expectation that they would prove both capable in skills
and sufficient in numbers to do what was required of them. But those
boundaries were never meant to be exclusive. Neither in Georgia nor
in any other Colony or independent State did any Militia Act ever
decree that any free and loyal person under 16 or over 60 (or whatever
the particular ages happened to be) could not possess a firearm, ammunition,
and accoutrements suitable for Militia service (or any other legitimate
purpose, for that matter). Or that anyone between 16 and 60 who was
physically unable to train or serve in the field could not possess
a firearm. Or that anyone over 60 could not volunteer for Militia
service, or would never be required to serve in case of an "alarm".
Or even that women could not possess--and, if absolutely necessary
in an emergency, use--firearms for the common defense or self-defense.
The
Militia Acts of pre-constitutional times mandated no licensing requirements
for the inhabitants' private possession of arms. They established
no general control over firearms by public officials--to the contrary,
firearms were required to be in every man's own hands, "at his usual
place of abode". No one worried about being punished for possessing
a firearm and ammunition--rather, penalties attached for not having
them always available, in good working order. No one feared that public
officials would conduct house-to-house searches to find and take away
armaments--instead, "a sight" could be demanded only to make sure
that every man actually had immediately accessible to him at home
a suitable, functioning firearm and ammunition for his own personal
use. And public officials were concerned, not that the people possessed
too many firearms, but that they had too few.[3]
None
of this was extraordinary, in the political context. The pre-constitutional
Militia Acts enforced the duty of each individual to keep and bear
arms which derived from, and put into general effect for the benefit
of society as a whole, the unalienable right of each individual to
keep and bear arms for personal self-defense--what the Founding Fathers'
legal mentor, William Blackstone, called "the natural right of resistance
and self-preservation, when the sanctions of society and laws are
found insufficient to restrain the violence of oppression".[4]
Indeed, if Americans had enjoyed no right to keep and bear arms--that
is, no legal claim to arm themselves against the contrary commands
of public officials--they could never have imagined themselves entitled,
empowered, or enabled to employ arms to suppress, oppose, or even
deter usurpation and tyranny.
The
principle in operation was that the only truly free men are armed
men, because an armed citizenry is necessary to maintain a free society.
As the Second Amendment came to summarize the idea, "[a] well regulated
Militia, being necessary to the security of a free State, the right
of the people to keep and bear Arms, shall not be infringed". A "free
State" is one with "[a] well regulated Militia"; and "[a] well regulated
Militia" is one composed of all "the people" actually exercising their
"right * * * to keep and bear Arms", with no "infringe[ment]" by public
officials. Arms in every citizen's personal possession are the precondition
for freedom, freedom the hoped-for consequence of such possession
(if the Militia do their part). And public officials can do nothing
to interfere with such possession, being limited in their authority
to ensuring that, through and in the Militia, everyone obtains and
maintains private possession of firearms suitable for defending individual
liberty and social order.
In
Georgia, however, as in most Colonies and independent States, not
everyone was free to possess firearms, because not everyone was free
in other ways. As the Militia Act of 1755 itself recited, "every able
Male person from the age of Sixteen to Sixty years who has once resided
& shall be [within] this province for the space of Three Months (SLAVES
EXCEPTED) is * * * lyable to bear Arms". Thus, the emphasized
words turn the researcher to the Colonial law of slavery.
Georgia’s Slavery Act of 1765, for example, explained itself on the rather blatant
theory of legalistic oppression that
Slavery
has been introduced and allowed in His Majesty’s Colonies in America
and * * * Power over such Slaves ought to be settled and limited
by positive Laws, so that the Slaves may be kept in due Subjection
and Obedience * * * [.][5]
The
Act went on to provide
[t]hat
it shall not be lawful for any Slave unless in the presence of some
White Person to carry and make use of Fire Arms or any offensive
Weapon whatsoever Unless such Slave shall have a Tickett or Licence
in Writing from his Master, Mistress or Overseer to hunt * * * and
that such Licence be renewed once every Month, or unless there be
some White Person of the Age of sixteen years or upwards in the
Company of such Slave when he is hunting or Shooting, or that such
Slave be actually carrying his Master's Arms to or from his Master's
Plantation by a special Tickett for that purpose, or unless such
Slave be found in the Day time actually keeping off Birds within
the Plantation to which such Slave belongs lodging the same Gun
at Night within the dwelling-House of his Master, Mistress, or white
Overseer. PROVIDED ALSO That no Slave shall have Liberty to carry
any Gun, Cutlass, Pistol or other Offensive Weapon abroad at any
Time, between Saturday Evening after Sun-set and Monday Morning
before Sun rise Notwithstanding a Licence or Tickett for so doing,
and in Case any Person shall find any Slave using or carrying fire-Arms
or other Offensive Weapon contrary to * * * this Act, such Person
may lawfully seize and take away such Offensive Weapon or fire-Arms
* * * [.][6]
The
connection between theory and practice in this statute was as inevitable
as it was obvious. Those "kept in due Subjection and Obedience" could
not be suffered to possess firearms without strict supervision and
restraint, lest they attempt to employ those firearms to free themselves
from that "Subjection and Obedience". So, slaves' access to and use
of firearms were strictly "licensed" or otherwise controlled, in order
-
to minimize the number of firearms available to them;
-
to keep track of which slaves had access to which firearms and for what purposes;
-
to limit the uses to which slaves could put firearms;
-
to make sure that the selfsame firearms made available to slaves during the day were returned to their masters' control "at Night" (when, presumably, the danger of insurrection was most acute); and
-
tosubject to seizure all unlicensed firearms, and any firearms possessed outside of permissible places or during prohibited periods.
Under some circumstances, though, even slaves could be armed for service
with the Militia during emergencies. For example, Georgia’s Militia
Act of 1755 allowed
[t]hat
[certain] Slaves [whom their masters deemed particularly reliable]
* * * shall in Time of General Alarm and Actual Invasion * * * &
not otherwise be armed by the respective Owners * * * with one sufficient
Gun, one Hatchet, powder Horn and Shott Pouch, with Ammunition of
powder and Bullets, for twenty Rounds, and Six Spare Flints, and
Shall be Sent * * * to the place of Randezvous of the respective
Company's * * * and instead of a pecuniary fining, such Slaves for
Breach or neglect of duty, shall be subject to * * * Corporal punishment
* * * .[7]
And meritorious service was rewarded. For
every Negroe or other Slave * * * who shall actually engage the Enemy, in times of Invasion * * * , and Shall * * * kill any one of the Enemy, or take a prisoner alive or Shall take any of their Colours * * * shall be * * * free and absolutely discharged from all Slavery * * * whatsoever, and the Owner * * * of such * * * Slaves * * * shall be sattisfyed for the full Value [thereof] * * * out of the public Treasury[.][8]
This
remained the practice on the eve of the War of Independence.[9]
Nonetheless,
armed service with the Militia depended entirely on a slave's proven
political reliability, as evidenced by his master's recommendation.
No one else in Colonial America required a recommendation from some
alleged superior before he could possess a military-grade firearm;
and no one else could keep and bear such a firearm only "in Time of
General Alarm and Actual Invasion * * * & not otherwise".
That
the only general exception in Colonial statutes to the right of individuals
to keep and bear arms applied exclusively to slaves supports three
conclusions:
-
First,
the principle of slavery--that men "kept in due Subjection and
Obedience" must be disarmed--is the opposite of and antagonistic
to the principle of the Militia--that free men are armed.
-
Second, general "gun control"--whereby most individuals in society are disarmed unless "licensed" or otherwise regulated by some select group of supposed superiors--is destructive of the Militia.
-
Third, general "gun control" can be justified only on the theory that the individuals disarmed are thereby rightfully to be "kept in
due Subjection and Obedience".
Now,
the exception to the right of individuals to keep and bear arms found
in the Slave States--namely, that those States could compleatly and
permanently disarm the class of individuals held in bondage--continued
after ratification of the Constitution, because slavery persisted
in those States. And, as the Militia remained "the Militia of the
several States", even Congress could not employ its power under Article
I, Section 8, Clause 16 to arm slaves in contradiction of State laws
that sanctioned "the peculiar institution". Therefore Congress never
attempted to do so.
In
1865, however, the Thirteenth Amendment outlawed slavery in most cases:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Because slavery was, as Georgia's statute of 1765 attested, a matter of "positive
law"--that is, because the legal existence of slavery required a statute
within the competence of the legislature to enact--when the Thirteenth
Amendment limited the imposition of slavery to "a punishment for crime"
it necessarily stripped both the State legislatures and Congress of
any purported power to impose slavery or any of its peculiar "badges
and incidents" for any other purpose.
General
"gun control" was an important "badge and incident" of slavery--indeed,
the most crucial of all, because without it the slaves could not possibly
have been "kept in due Subjection and Obedience". Therefore, today
the Thirteenth Amendment must outlaw all general "gun control", except
as to those individuals who have actually been "duly convicted" of
"crime" and for their "punishment" have been sentenced to a term of
"slavery [ ]or involuntary servitude", during which they may be "kept
in due Subjection and Obedience" by being disarmed, even after being
released from prison. (What violations of law may rightfully be considered
a "crime" deserving of "slavery [ ]or involuntary servitude" is, however,
another question. Arguably, a "felony" as understood in the Colonies--that
is, "an offence which occasions a total forfeiture of either lands
or goods, or both, at the common law; and to which capital or other
punishment may be superadded, according to the degree of guilt"[10]--could
qualify.) In any event,
the
Thirteenth Amendment's implicit limitation on general "gun control"
puts sharp teeth in the explicit guarantee of the Second Amendment
that "the right of the people to keep and bear Arms, shall not be
infringed". For vanishingly few Americans would knowingly tolerate
the imposition of any of the "badges and incidents" of "slavery [
]or involuntary servitude" as "punishment" for any but the most serious
"crime[s]" and the most hardened, recidivistic offenders.
And
teeth are surely necessary, in light of the parallels between the
law of slavery as it applied to firearms and contemporary proposals
for general "gun control":
-
The law of slavery denied slaves any legal right to possess firearms, and minimized the number of arms available to them. Contemporary "gun control" presumes that Congress and the State legislatures enjoy the power to disarm anyone and everyone, invents more and more classes of individuals to be disqualified from possessing firearms, and designates more and more types of firearms the private possession of which is to be forbidden.
-
The law of slavery carefully tracked which slaves had access to which firearms and for what purposes. Contemporary "gun control" demands that common Americans must be "licensed" to possess firearms, and must "register" those they possess.
-
The law of slavery limited to such non-military activities as hunting
the uses to which slaves could put firearms. Contemporary "gun
control" seeks to ban all firearms for which politicians and bureaucrats
claim to see no "sporting" purposes--especially those of proven
military value, such as so-called "assault weapons", .50 BMG caliber
rifles, and accurate high-powered rifles with telescopic sights
(now being demonized in the media as "sniper rifles").
-
The law of slavery required that the firearms slaves were allowed to use during the day always be returned to their masters' control every night. Contemporary "gun control" proposes that all privately owned firearms be secured in governmentally supervised storage until withdrawn for governmentally approved "sport", and then promptly returned.
-
The law of slavery subjected to seizure all unlicensed firearms in slaves' hands, and any firearms slaves possessed outside of permissible places or during prohibited periods. Contemporary "gun control" insists on nothing less for everyone except the Armed Forces and the police, as well as confiscation of all firearms of prohibited types in private hands.
These
parallels illustrate that general "gun control" is nothing less than
a political program aimed at reimposing the most crucial "badge and
incident" of slavery on everyone other than an elitist leadership
class and its armed guardians, in order thereby to remove the ultimate
deterrent to and defense against that class's usurpation and tyranny,
and keep common Americans perpetually "in due Subjection and Obedience".
(A slave, of course, can never complain of usurpation or tyranny,
because slavery is the very perfection of usurpation and tyranny.)
Nowhere
in America are these parallels more glaring and shocking than in the
District of Columbia. The District prides itself on being a city in
which African-Americans, the vast majority of whom are probably to
some degree descendants of Southern slaves, hold high political, economic,
and social positions. And it is the Nation's Capital. Yet, all of
this notwithstanding, the residents of the District of Columbia suffer
from "gun control" that in its thoroughgoing oppressiveness embodies
the essence of the exorbitant powers claimed by antebellum Southern
slavery.
How
is one to explain this antinomy? That the District's public officeholders,
police officials, and other influential people of African-American
descent who stump for "gun control" are just handkerchief-head Uncle
Toms, shuffling for the Establishment? In some instances, venal collaboration
may be the answer. In most cases, though, the culprit is more likely
vincible ignorance. (A negative cultural conditioning, too, may play
a role.[11])
These people simply do not understand what freedom promises, entails,
and especially requires. They do not know the history of this country,
or their own history--and knowing neither they cannot read and apply
the Constitution intelligently.
That
burden of ignorance, unfortunately, is a problem all too many other
Americans share with them. True, it is correctable. But the time for
correction is running out, for all of us together.
To
my readers:
I
am now working on a constitutional program of "homeland security"
based on "the Militia of the several States". This is probably the
most important project on which I have ever embarked. It will also
be the most difficult to fund, because next to no one among the powers
that be, "conservative" or "liberal", wants to see the Militia revitalized.
Therefore,
I appeal to common Americans for whatever financial support they can
offer to advance this work. Contributions should be marked "Militia
Project", and mailed to me at 13877 Napa Drive, Manassas, Virginia
20112. All contributions will be hypothecated to this work only.
Even if you cannot contribute, please drop me a line to let me know that you believe this effort is important.
Thankyou in advance.
Edwin Vieira, Jr.
Footnotes:
1,
AN ACT For Regulating the Militia of this province and for the
Security and better Defence of the same, 24 January 1755, in THE
COLONIAL RECORDS OF THE STATE OF GEORGIA, VOLUME XVIII, STATUTES ENACTED
BY THE ROYAL LEGISLATURE OF GEORGIA FROM ITS FIRST SESSION IN 1754
TO 1768 (compiled and published by A.D. Candler; Atlanta, Georgia:
C.P. Byrd, 1910), at 16-18.
2,
Ibid. at 11-13.
3,
See, e.g., H.R. McIlwaine, Executive Journals of the Council of
Colonial Virginia (Richmond, Virginia, 1925), Volume 2, at 333-34,
which reprints an order of the Governor and Council that arms imported
by the government from England should be sold to the colonists at
12.5% over cost.
4,
Commentaries on the Laws of England (American Edition. Philadelphia,
Pennsylvania: R. Bell, 1771), Volume 1, at 144.
5,
AN ACT For the better Ordering and Governing Negroes and other
Slaves in this Province and to prevent the inveigling or carrying
away Slaves from their Masters or Employers, 25 March 1765, in
THE COLONIAL RECORDS OF THE STATE OF GEORGIA, VOLUME XVIII, at 649.
6,
Ibid. at 668.
7,
AN ACT For Regulating the Militia of this province and for the
Security and better Defence of the same, 24 January 1755, in THE
COLONIAL RECORDS OF THE STATE OF GEORGIA, VOLUME XVIII, at 40.
8,
Ibid. at 43.
9,
See AN ACT For the better ordering the Militia, 29 September
1773, THE COLONIAL RECORDS OF THE STATE OF GEORGIA, VOLUME XIX (PART
I), STATUTES, COLONIAL AND REVOLUTIONARY, 1768 TO 1773 (compiled and
published by A.D. Candler; Atlanta, Georgia: C.P. Byrd, 1911), at
324-29.
10,
W. Blackstone, Commentaries on the Laws of England, Volume 4, at
95. Followed in Ex parte Wilson, 114 U.S. 417, 423 (1885).
11,
See Kenneth V.F. Blanchard, Black Man with a Gun: A Responsible
Gun Ownership Manual for African Americans (Baltimore, Maryland:
American Liberty Press, 2000), chapter 3.
NOTE: In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed prior interest in receiving this information for non-profit research and educational purposes only. For further information please refer to: http://www.law.cornell.edu/uscode/17/107.shtml
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