The Militia and Armed Rebellion at the Constitutional Convention

In my previous discussion of David Frum's articles on the Founding Fathers' views of private armies, I discussed examples before the U.S. Constitution was even begun.  Frum also quotes discussions of the militia during the Constitutional Convention to argue that militias were not private armies, and that their purpose was not armed resistance to the new government being founded.  The only fault I would find is that he does not quote extensively enough.

The subject of the militia was first discussed on August 18, almost exactly a month before the Convention ended:

Mr. MASON introduced the subject of regulating the militia. He thought such a power necessary to be given to the Genl. Government. 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. Thirteen States will never concur in any one system, if the displining of the Militia be left in their hands. If they will not give up the power over the whole, they probably will over a part as a select militia. He moved as an addition to the propositions just referred to the Committee of detail, & to be referred in like manner, "a power to regulate the militia."

That alone makes clear what was meant by a "militia" at the time the Constitution was adopted.  It was not every man and his gun with no organization, nor was it a private army.  Nor did "regulation" mean self-regulation, i.e., every man learning to properly use a gun.  Rather, it was a system under the discipline of a government.  The only dispute was whether it was to be a federal or state government.

The subject is then dropped for a while as other federal powers are discussed.  But Mason raised the subject again later the same day:

Mr. MASON moved as an additional power "to make laws for the regulation and discipline of the militia of the several States reserving to the States the appointment of the officers." He considered uniformity as necessary in the regulation of the Militia throughout the Union.

Genl. PINKNEY mentioned a case during the war in which a dissimilarity in the militia of different States had produced the most serious mischiefs. Uniformity was essential. The States would never keep up a proper discipline of their militia.

Mr. ELSEWORTH was for going as far in submitting the militia to the Genl. Government as might be necessary, but thought the motion of Mr. Mason went too far. He moved that the militia should have the same arms & exercise and be under rules established by the Genl. Govt. when in actual service of the U. States and when States neglect to provide regulations for militia, it shd. be regulated & established by the Legislature of [16] U. S. The whole authority over the Militia ought by no means to be taken away from the States whose consequence would pine away to nothing after such a sacrifice of power. He thought the Genl. Authority could not sufficiently pervade the Union for such a purpose, nor could it accomodate itself to the local genius of the people. It must be vain to ask the States to give the Militia out of their hands.

Once again, militia is clearly not treated as every man and his gun without organization, nor as private armies, but an organized body under the control of some government.  The issue is which level, federal or state.  Some discussion then followed of giving the federal government authority over only a portion of the militia.  Oliver Ellsworth of Connecticut grumbled that, " The States will never submit to the same militia laws. Three or four shilling's as a penalty will enforce obedience better in New England, than forty lashes in some other places."  Once again, "regulation" of the militia is used to mean laws governing it, not individuals regulating themselves.  Charles Cotesworth Pinckney of South Carolina said he had little faith in the militia and that without a real military force, the country would degenerate into anarchy.  Finally:

Mr. SHERMAN, took notice that the States might want their Militia for defence agst. invasions and insurrections, and for enforcing obedience to their laws. They will not give up this point. In giving up that of taxation, they retain a concurrent power of raising money for their own use.

Two others were inclined to agree.  No one at all responded by saying that the whole point of a militia was to safeguard the potential of rebellion, not to defend against it or enforce laws.  The issue was sent to committee to work out the details.

The committee returned with its report nearly a week later.  It proposed to give the federal government power:

To make laws for organizing, arming & disciplining the Militia, and for governing such part of them as may be employed in the service of the U. S. reserving to the States respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed.

When asked for clarification, Rufus King, who served on the committee explained:

Mr. KING, by way of explanation, said that by organizing, the Committee meant, proportioning the officers & men -- by arming, specifying the kind size & caliber of arms -- & by disciplining prescribing the manual exercise evolutions &c.

In response to the comment that "arming" did not mean furnishing arms and "disciplining" did not mean establishing the penalties or court martial, he added:

Mr. KING added, to his former explanation that arming meant not only to provide for uniformity of arms, but included authority to regulate the modes of furnishing, either by the Militia themselves, the State Governments, or the National Treasury: that laws for disciplining, must involve penalties and every thing necessary for enforcing penalties.

All right.  So the federal government can furnish arms for the militia, it can direct states to furnish arms, or it can direct the members to bring their own guns.  It can also set penalties for breaking militia rules and the court martial system for enforcing those penalties.  This really does not sound like a discussion of private armies, or armed rebellion against the government.  Some back-and-forth followed (including Frum's quote), all addressed to the degree of control over the militia by federal versus state government.  Edmund Randolph said that states were ignoring the militia because enforcing discipline was unpopular. The topic of private armies or rebellions of the Shays type was never so much as mentioned.  Elbridge Gerry grumbled, "Will any man say that liberty will be as safe in the hands of eighty or a hundred men taken from the whole continent, as in the hands of two or three hundred taken from a single State."  But no one discussed whether liberty would be safe if anyone unhappy with the government could raise a private army.

The proposal then handily passed.  Madison proposed to modify it to allow the federal government to appoint generals and the states to appoint lower ranking officers. This was indignantly refused.  So the militia was to have all officers appointed by the states, an arrangement hardly consistent with the militia being anything but under control of some level of government.

The role of rebellion was also raised July 18 (a month before the discussion of the militia) in the context of the proposal, "That a Republican Constitution & its. existing laws ought to be guarantied to each State by the U. States."  Some people then complained that this appeared to forbid reform of existing bad laws.  James Wilson assured the delegates that "The object is merely to secure the States agst. dangerouscommotions, insurrections and rebellions."

Col. MASON. If the Genl. Govt. should have no right to suppress rebellions agst. particular States, it will be in a bad situation indeed. As Rebellions agst. itself originate in & agst. individual States, it must remain a passive Spectator of its own subversion.

That would seem to fly directly in the face of the whole insurrectionist theory that subversion of the government is something good and to be encouraged.  Even more so the comments of Nathaniel Gorham:

Mr. GHORUM thought it strange that a Rebellion should be known to exist in the Empire, and the Genl. Govt. shd. be restrained from interposing to subdue it. At this rate an enterprising Citizen might erect the standard of Monarchy in a particular State, might gather together partizans from all quarters, might extend his views from State to State, and threaten to establish a tyranny over the whole & the Genl. Govt. be compelled to remain an inactive witness of its own destruction. With regard to different parties in a State; as long as they confine their disputes to words, they will be harmless to the Genl. Govt. & to each other. If they appeal to the sword, it will then be necessary for the Genl. Govt., however difficult it may be to decide on the merits of their contest, to interpose & put an end to it.

This calls for some serious unpacking.  While the insurrectionist theory assumes that the only danger to liberty could be from an overweening government, and that rebellion is necessarily to uphold freedom, Gorham seems to see rebellion itself as a source of danger and possible tyranny.  He also says that states can conduct their domestic politics as they please so long as they do not resort to violence, but that violence may call for armed intervention.  Two things stand out here -- that he sees political violence as inherently dangerous, and that he trusts the federal government to take sides.  All of this would seem perfectly unremarkable if we did not currently have certain people who glorify political violence.  Everyone then agreed to a proposal that each state should be guaranteed a republican government and protected from "foreign and domestic violence."  The Convention adjourned for the day.

The subject came up again a month later, on August 17, interestingly, the day before the militia was first discussed.  This debate in this case was whether the federal authority to subdue a rebellion in a state should require the application of the state legislature.  Some argument went back and forth, with some members thinking the states were best suited to decide and others saying the prospect of federal intervention would be a useful deterrent. Somebody pointed out that the emergency might prevent a state legislature from convening.  In the end, the Convention voted to require the application of the state legislature unless the legislature could not meet.  No one suggested that rebellions were something inherently good to be encouraged.

The subject of rebellion was briefly raised twice more on the topic of whether the application of the state executive should be sufficient.  The Convention ended up decided that the application of the state executive would be sufficient if the legislature was unable to meet.  The provision remains in our Constitution to this day.

In short, the topics of militia and rebellion are raised in the Constitutional Convention.  At no time is rebellion treated as anything other than an evil to be suppressed.  The militia is treated as a body organized by laws, under the control of government, with officers chosen by government.  There was serious debate as to which level of government -- federal or state -- should command the militia and an complex compromise.  At no point, however, did anyone endorse private armies, or suggest the private armies were a legitimate militia.

Next:  Militia, rebellion, and revolution in the Federalist Papers.