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To Keep and Bear Arms

I must apologize for pursuing this one instance of the gun advocates’ mode of argument. It shows how difficult it is to track down their many misrepresentations. They take an isolated odd usage by an idiosyncratic man in a moment of little reflection, misrepresent it as the considered position of a group, and pit it against the vast body of normal usage, as that is qualified by legal usage and military context. Yet this is the argument that many gun advocates consider their “clincher.” Robert Whitehill did them a favor they repay by hiding his name and confusing the responsibility for his frantic “proposals.”

An indirect argument is made by Joyce Lee Malcolm—that the Second Amendment refers to the private use of arms, since that is what is intended by the 1689 British Bill of Rights, Article 6: “That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.” But to have arms is not to “bear arms,” and the British document lacks Madison’s context-establishing language of a “well-regulated militia.” Even if Malcolm’s argument were true of seventeenth century England (I argue elsewhere that it is not), it is irrelevant to an amendment phrased like Madison’s.27

2. To keep. Gun advocates read “to keep and bear” disjunctively, and think the verbs refer to entirely separate activities. “Keep,” for them, means “possess personally at home”—a lot to load into one word.28 To support this entirely fanciful construction, they have to neglect the vast literature on militias. It is precisely in that literature that to-keep-and-bear is a description of one connected process. To understand what “keep” means in a military context, we must recognize how the description of a local militia‘s function was always read in contrast to the role of a standing army. Armies, in the ideology of the time, should not be allowed to keep their equipment in readiness.

The constitutional ideology formulated in seventeenth-century England recognized that the realm’s wealthy landowners and merchants were invited to share in the national government only or mainly when the king called parliaments into session, and he did that largely when he needed funds. One of the greatest urgencies for funds arose from war. If the king needed to raise and equip a new army for each war, he was dependent on the fresh revenues only a parliament could bring him in sufficient quantities. Thus it was to parliament’s interest not to give any king the means to continue an army at his disposal. The more discontinuous his military efforts, the more was it necessary to call new parliaments, which could bargain for new powers of their own.

An army must be prevented from standing—from existing on a permanent basis. A pamphleteer against absolute monarchy wrote in 1675 that the king must not be allowed to “keep up a standing army.”29 In 1697, the great ideologue of the militia movement, John Trenchard, warned against any situation where “a standing army must be kept up to prey upon our entrails.”30 That applied not only to troops, standing in readiness but to “stands” (stores) of arms.

To preclude, so far as possible, the maintenance of extraordinary forces by the king, local rulers (the squirearchy) kept in readiness a force—a militia—to handle all normal peacekeeping activity. Royal forces; except for those abroad in the navy or guarding Channel forts, were to be disbanded after each specific campaign, their arsenals broken up. Those who could not be reabsorbed into the normal economy should go to the militias, according to Trenchard.31 These latter were to maintain arsenals and all the equipment needed for “trained bands” (the normal term for individual militia bodies). In fact, at a time when more men were likely to have crossbows than “firelocks,” Trenchard advised that “a competent number of them [firelocks] be kept in every parish for the young men to exercise with on holidays.”32 These would be used on a rotating basis, since Trenchard proposed that only a third of the militia should be exercised at one time.33

The idea of militia “stands” in common depots or arsenals was not confined to England. In America, the Articles of Confederation required that “every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and equipage” (equipage being the etymological sense of arma).34 Thus it is as erroneous to suppose that “keep” means, of itself, “keep at home” as to think that “arms” means only guns. As Patrick Henry tells us, the militia’s arms include “regimentals, etc.”—the flags, ensigns, engineering tools, siege apparatus, and other “accoutrements” of war.

Some arms could be kept at home, of course. Some officers kept their most valuable piece of war equipment, a good cross-country horse, at home, where its upkeep was a daily matter of feeding and physical regimen. But military guns were not ideally kept at home. When militias were armed, it was, so far as possible, with guns of standard issue, interchangeable in parts, uniform in their shot, upkeep, and performance—the kind of “firelocks” Trenchard wanted kept “in every parish” (not every home). The contrast with armies was not to be in performance (Trenchard and others boasted of the high degree of efficient organization in militias).35 The contrast was in continuity. The militia was always at the ready, its arms “kept.” Armies came and went—their “continuation” was what Trenchard attacked.36

Trenchard talked of militia arms being lodged in the proper hands—neither in an army’s, on the one side, nor in the lower orders, on the other (Trenchard’s was a militia of property owners).37 In America, “deposition” of arms from the proper hands occurred, most famously, when the King’s troops seized the militia’s arsenals at Concord in the north and at Williamsburg in the south. That is where arms were kept, lodged, maintained.

To keep-and-bear arms was the distinguishing note of the militia’s permanent readiness, as opposed to the army’s duty of taking up and laying down (“deponing” is Trenchard’s word) their arms in specific wars. The militia was maintained on a continuing basis, its arsenal kept up, its readiness expressed in the complex process specified by “keep-and-bear.” To separate one term from this context and treat it as specifying a different right (of home possession) is to impart into the language something foreign to each term in itself, to the conjunction of terms, and to the entire context of Madison’s sentence.

3. Well-regulated. One of the modern militia leaders who testified before Congress said, in answer to a question by Representative Patricia Schroeder about his insignia, that the militia movement is informal, spontaneous, and without fixed leadership. No eighteenth-century defender of the militias would have spoken that way. Sensitive to the charge that militias could be mobs, they always stressed that they were talking of a proper militia, a good militia, a correct militia, one well-trained, well-disciplined, well-regulated.

The use of the last term is especially significant, since the king’s soldiers and sailors were called “regulars” in the eighteenth century. The militias, too, were “regular,” existing under rules (regulae). They did not boast a lesser discipline, just a right to continual upkeep of themselves and their equipment. Adam Smith took regulated to mean, principally, “regimented”—divided into bodies of troops.38

General discussion of regulation concentrated on three matters: composition of the bands, arming (which included financing) them, and disciplining them. These three concerns are reflected in the Constitution’s militia clause, which speaks of a congressional power “to provide for organizing, arming, and disciplining the militia” (Article I, Section 8, Clause 16).

To organize a militia, the most basic question is: Who should belong to it? The answer, prompted by reliance of the militia ideology on classical republicanism, was “the people.” Greece and Rome were military states in which each civis was a miles. But “the people” in seventeenth-century England had a meaning as narrow in military affairs as in all others. Few could vote in that era. Few held land. Few had patents or grants for commerce. Since one of the roles of the militia was to serve as a local police power (in conjunction with the constabulary of the parish), not just any transient, or guild member, or wage laborer automatically belonged to the militia. They were the ones being policed. A landholder could use his own “retainers” (equipping them out of his store) to serve under him, at war as in peace. Or he could buy the services of another if he wished to evade service. But in general the social structure of a very deferential society was reflected in the makeup of the militias, whose officer class was the ruling class.39 Suspect elements in society—Catholics, Jews, some members of dissenting sects—were kept at various times from access to military equipment. Traces of this attitude survived in the American colonies, where John Adams described the militia as led by “gentlemen whose estates, abilities and benevolence” made them obeyed.40 As we shall see, the meaning of “the people” is different at differing periods, but at no time preceding the passage of the Second Amendment could any man be considered a militia member just by picking up his gun and proclaiming himself one.

The arming of the militia was a delicate matter, since that meant financing it—its wages, supplies, equipment, training facilities. Royal money could not be accepted, since permanent militia costs would give the king a claim upon permanent revenues. The gentry could provide much of the cost, or parish authorities. The local residence of the bands made barracks unnecessary. Use of public facilities was not considered “quartering” when local authorities and residents were the users. The ideological furor against quartering troops had the same source as the support of militia. Since the king was denied the standing barracks of a standing army, he might maintain an army on the cheap, without having to call on parliament, if he used public buildings, landed estates, taverns and inns, and even some private homes to lodge his military men, horses, and arsenals.41 To this concern we owe the Third Amendment, which is as solely (and anachronistically) military in focus as is the Second Amendment. A fear of “taking the King’s pence” lay behind the objections of Patrick Henry and others to federal financing of the militias. Yet that became the law of the land under the Constitution. All authorized militias under our government have been financed by the central government, which also establishes their code of discipline.

Discipline was the third item of concern for eighteenth-century defenders of militias. No one was a member of the militia who had not joined an authorized “trained band” and been trained. So important is proper training that we often find “well-regulated” followed by an epexegetic phrase, spelling out the meaning of the term: “a well regulated militia, trained to arms” was the form Elbridge Gerry preferred for the Second Amendment.42 More expansively the Virginia ratifying convention suggested “a well-regulated militia, composed of the body of the people trained to arms.”43

  1. 27

    Malcolm, To Keep and Bear Arms, Chapters 7 and 8. It should be observed that the British “complaint” is a gun-control measure, setting three restrictions on having arms—Protestantism, social condition, and the allowance of unspecified gun laws. Furthermore it is a grant (“may have”) not a statement of antecedent right.

  2. 28

    For the assumption that “keep” means “keep in the house” see Dowlut, “Federal and State Constitutional Guarantees to Arms,” p. 69: “The bearing of arms in a public place is different from the keeping of arms in the home on account of the home’s special zone of privacy.” Private gun ownership is guaranteed, he claims, by the keeping of guns in the privacy zone. For keep as individual possession, see Robert E. Shalhope on “two distinct, yet related rights—the individual possession of arms and the need for a militia made up of ordinary citizens.” “The Ideological Origins of the Second Amendment,” Journal of American History (December 1982), pp. 599–614. Glenn R. Reynolds, one proponent of the Standard Model, quotes with approval the disjunction formulated by Donald B. Kates that “the term ‘keep’ refers to owning arms that kept in one’s household; the term ‘bear’ refers to the bearing of arms while actually taking part in militia duties” (“A Critical Guide to the Second Amendment,” p. 482).

  3. 29

    Anonymous pamphlet cited in Richard Ashcraft, Revolutionary Politics and Locke’s ‘Two Treatises of Government’ (Princeton University Press, 1986), p. 118. Italics added.

  4. 30

    John Trenchard, An Argument, Shewing that a Standing Army Is Inconsistent with a Free Government and absolutely destructive to the Constitution of the English Monarchy (London, 1697), p. 6. Italics added. A good brief description of the militia ideology is in Adam Smith, Lectures on Jurisprudence, pp. 268–269, 420–421, See Also J.G.A. Pocock, The Machiavellian Moment (Princeton University Press, 1975), Chapter 12, pp. 401–422, and Lois G. Schwoerer, ‘No Standing Armies!’: The Antiarmy Ideology in Seventeenth-Century England (Johns Hopkins University Press, 1974), pp. 174–187 (on Trenchard as “the great tutor” on militias). Hamilton says the objection to standing armies was to “keeping them up in a season of tranquility” (Federalist No. 25, p. 160). Italics in original.

  5. 31

    Trenchard, An Argument, p. 21

  6. 32

    Trenchard, An Argument, p. 21. Italics added.

  7. 33

    Trenchard, An Argument, p. 21.

  8. 34

    Articles of Confederation,” in Jensen, editor, The Documentary History of the Ratification of the Constitution, Article VI, p. 88. Italics added. As an English noun, “keep” meant the permanently holdable part of a castle (the equivalent of the Italian military term tenazza).

  9. 35

    Trenchard defends the “well-trained militia” against the arming of “an undisciplined mob” (An Argument, p. 20).

  10. 36

    A “continuation” of the army would make it an “establishment” (An Argument, p. 15).

  11. 37

    Trenchard, An Argument, pp. 7, 10.

  12. 38

    Adam Smith, An Inquiry Into the Nature and Causes of the Wealth of Nations, edited by W.B. Todd (Oxford University Press/Clarendon Press, 1976), Vol. 2, p. 698.

  13. 39

    See Trenchard, An Argument, p. 22: “There can be no danger from an army where the nobility and the gentry of England are the commanders, and the body of it made up of the freeholders, their sons and servants…” Because the militia was an extension of the landed class’s authority, it was a Tory enthusiasm, denounced as such by the Whig author, Sir John Hawkins, when he condemned his friend Samuel Johnson for “his invectives against a standing army.” The Life of Samuel Johnson, LL.D., by Sir John Hawkins, Knt., edited by Bertram H. Davis (Macmillan, 1961), p. 45. Adam Smith said a laborer should not join the military since his “constant labour hurt the shape and rendered him less fit for military exercises… (We can know a tailor by his gait.)” See Lectures on Jurisprudence, p. 231.

  14. 40

    Robert J. Taylor et al., editors, Papers of John Adams (Harvard University Press/Belknap Press), Vol. 2 (1977), p. 253 (“Novanglus” No. 2, February 6, 1775).

  15. 41

    See Schwoerer, ‘No Standing Armies!‘, pp. 20–22.

  16. 42

    Schwartz, The Bill of Rights, Vol. 2, p. 1109.

  17. 43

    Elliot, Debates in the Several State Conventions, Vol. 3, p. 659.

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