Noel Hudson: What, exactly, was the well-regulated militia? – VTDigger

This commentary is by Noel Hudson, a lawyer who lives in Montpelier.

Self-proclaimed militias have been an increasingly visible part of the American scene since the 1990s, so far culminating in their leading role during the storming of the capitol on Jan. 6, 2021.

The movement has manifested locally in Vermont with the worrisome antics of Daniel Banyai and his Slate Ridge militia training facility in Pawlet.

During its most recent legislative session, Vermont responded by joining the many other states that have prohibited, with varying degrees of severity, the formation and training of private militias. Public reaction to militias, both locally and nationwide, often is confused regarding the constitutional principles at stake. This confusion understandably focused on the importance of a well regulated militia in the Second Amendment is both misplaced and unnecessary.

Simply put, there are no Second Amendment-related rights at issue in suppressing private militias, nor has any significant court decision ever recognized any.

The Second Amendment often reads mysteriously to contemporary Americans, mostly because it comes down emphatically on one side of a debate that Americans stopped having nearly two centuries ago. The question was: What type of military force can be maintained by a stable republic? A professional army, or a citizen militia?

For a large portion of colonists and subsequent early Americans, the answer was, in no uncertain terms, a citizen militia. The prevailing republican ethos that fueled Americas revolution, imported and nurtured by various British dissidents and Cromwellian republican refugees, viewed a professional army (a standing army in the lingo of the period) as inevitably fatal to republican government, a virtual guarantee of a return to monarchy or some other form of tyranny.

The danger stemmed precisely from the armys professional nature: Paid soldiers were economically dependent on following orders, no matter how extra-legal, unjust or tyrannical those orders might be, rendering them mercenaries in all but name. A government in possession of such power, as all European monarchies were, could never resist the temptation to use it.

On the other hand, a militia composed of armed citizens would respond only to orders that were just and legitimate. With the military function in the hands of the citizenry, a would-be tyrant would have no effective fighting force at his disposal, and republican government would be sustained.

The ideal of the republican militia survived the American Revolution, but the events of the war complicated matters. As the colonial legislatures became independent shadow governments organizing against the British empire, striking the first blows in Lexington and Concord in the spring of 1775, faith in the citizen militias was strong. But the reality of the fighting in and around Boston that year was that the British force involved was small and inexperienced.

Such favorable conditions wouldnt last, and by the end of 1776, a massive army of the Crowns best redcoats and a large contingent of battle-hardened German mercenaries had annihilated the combined militias of New England and roamed the mid-Atlantic almost at will. General Washington, long a militia skeptic, finally had room in the wake of the catastrophe to demand authorization for a professional army, shorn of the colonial militias democratic command structure and complete with pay, imported drill masters, and harsh military discipline.

It was this far more effective but ideologically deviant Continental Army that won the war, with no small help from the uber-monarchical French army and navy.

Even waning ideologies can be durable, and the wartime lessons were of small effect. There was little appetite in early America to move on from the militia, a disposition helped by the public memory of the wars first year, and which settled into an iconography that lasts to this day.

The Continental Army was disbanded promptly upon victory, and the prevailing assumption through the confederation period and among the Constitutional Congress formed in 1787 was that the state militias would be the principal military force of the states and of the United States. Our Constitution as drafted in 1787 reflects that assumption in the militia clauses of Article I.

But the recent war and the judgment of its most illustrious veterans, Washington and Alexander Hamilton, led the Constitutions drafters also to include in Article I a provision for a professional federal army. For several decades, the requirement that the federal army and its funding be formally reauthorized by Congress every two years ensured that it remained a nominal force compared to the state militias.

Nevertheless, the mere possibility that the new Constitution would facilitate the establishment of a standing army provoked an enormous storm of protest. Attachment to the militias remained of fundamental importance to a critical mass of the citizenry, among several points of debate that nearly prevented the Constitution from being ratified.

When the recalcitrant anti-federalists succeeded in agitating to amend the Constitution with a Bill of Rights, the Second and Third Amendments were aimed squarely at preserving the states citizen militias and preventing a federal standing army. State constitutions already had parallel militia and arms-bearing clauses, ensuring that state governments were constrained from establishing professional military forces as well.

The first Congresses and President Washington duly complied with the Constitutions command to regulate the militias, passing the Militia Acts of 1792 and the Militia Act of 1795.

While Article I of the U.S. Constitution, the founding-era state constitutions, and the federal Militia Acts of the 1790s are hardly obscure documents, they specify and implement the original meaning of the Second Amendment and its militia clause in ways that can seem discordant, fantastic, even alien to people steeped in contemporary rhetoric. So it is worth looking squarely at the complex brew of rights and obligations that the anti-federalists attempted to cement immovably in place with the Second Amendment.

Firstly, a well-regulated militia meant universal conscription, every man a soldier as a duty of citizenship and for no compensation. With few exceptions, every free white male between ages 17 and 45 was permanently enrolled and semi-mobilized in times of peace (and, implicitly, fully mobilized during war), including that large contingent of men who did not own land and therefore did not even have the right to vote.

These militiamen were required to serve for their entire adult lives. The average life expectancy of the time was 35 years; as a practical matter, there was no retirement age. Federal law specified at length the type of firearm, ammunition and other supplies that every militiaman was required to buy and maintain for militia duty; functionally, this was an onerous tax in addition to being a draft.

The militiamen answered to an officer corps appointed by their state governments and a chain of command that ended with each states governor. At the election of Congress, all state militias could be put under command of the U.S. president. By 1795, the president did not even need Congress to act in order to take command of the state militias; he could do so on his own authority. A libertarian paradise early America was not, but the alternative was a large professional army that few people wanted and many dreaded.

As decades passed and early Americans endured the heavy burden of militia service, however, that alternative looked better and better. Disillusionment with the militias accelerated after the War of 1812, when their poor performance in battle led again to disasters that finally started to seem predictable.

By the end of the 19th century, hardly anyone complained about Americas permanent professional military and professional law enforcement officers displacing the state militias. By the end of the 20th century, hardly anyone remembered accurately what the state militias were.

But it is worth remembering what they were, as our contemporary world is full of internet-fueled nonsense about what a well-regulated militia was and how it worked. Legions of contemporary firearms enthusiasts insist with equal parts confidence and ignorance that well-regulated had nothing to do with government regulation at all, and that our Constitution enshrines the right of independent bands of armed men to make fundamental decisions about what our laws mean and whether we live in a state of peace or war, all while answerable to no one but themselves. This belief appears to be widespread, passionately held, and often put forth with deliberate menace.

Vermonts Legislature and Gov. Scott should be commended for taking a step against this dangerous vision. It has no redeeming value, no practical promise, and no serious basis in our nations history or law.

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Noel Hudson: What, exactly, was the well-regulated militia? - VTDigger