Documents on the First Congress Debate on Arms and Militia.

Extracted from The Origins of the American
Constitution, A Documentary History,

Edited by Michael Kammen, Penguin Books, 1986; and from Creating the Bill of Rights: The Documentary Record from the First Federal Congress,

Edited by Helen E. Veit, et al., The Johns Hopkins University
Press, 1991.

(Edacted by Jim Knoppow)

From the Madison Resolution, June 8, 1789.

Resolved, that the following amendments ought to be proposed by Congress to
the legislatures of the states, to become, if ratified by three fourths
thereof, part of the constitution of the United States… The right of the
people to keep and bear arms shall not be infringed; a well armed, and well
regulated militia being the best security of a free country; but no person
religiously scrupulous of bearing arms, shall be compelled to render
military service in person…

AMENDMENTS PROPOSED BY STATES

Massachusetts Convention — Did not propose a keeping and bearing amendment,
nor a militia nor a standing army amendment.

South Carolina — Proposed no keeping and bearing, or militia or standing
army amendment.

New Hampshire — TENTH, That no standing Army shall be Kept up in time of
Peace unless with the consent of three fourths of the Members of each branch
of Congress, nor shall Soldiers in Time of Peace be Quartered upon private
Houses without the consent of the Owners… TWELFTH Congress shall never
disarm any Citizen unless such as are or have been in Actual Rebellion.

Virginia — SEVENTEENTH, That the people have a right to keep and bear arms;
that a well regulated Militia composed of the body of the people trained to
arms is the proper, natural and safe defence of a free State. That standing
armies in time of peace are dangerous to liberty, and therefore ought to be
avoided, as far as the circumstances and protection of the Community will
admit; and that in all cases the military should be under strict
subordination to and governed by the Civil power. EIGHTEENTH, That no
Soldier in time of peace ought to be quartered in any house without the
consent of the owner, and in time of war in such manner only as the laws
direct. NINETEENTH, That any person religiously scrupulous of bearing arms
ought to be exempted upon payment of an equivalent to employ another to bear
arms in his stead… (Amendments proposed to the body of the
Constitution)…. NINTH, that no standing army or regular troops shall be
raised or kept up in time of peace, without the consent of two thirds of the
members present in both houses. TENTH, That no soldier shall be enlisted for
any longer term than four years, except in time of war, and then for no
longer term than the continuance of the war. ELEVENTH, That each State
respectively shall have the power to provide for organizing, arming and
disciplining it’s own Militia, whensoever Congress shall omit or neglect to
provide for the same. That the Militia shall not be subject to Martial Law,
except when in actual service in time of war, invasion, or rebellion; and
when not in the actual service of the United States, shall be subject only
to such fines, penalties and punishments as shall be directed or inflicted
by the laws of its own State.

New York — That the People have a right to keep and bear Arms; that a well
regulated Militia, including the body of the People capable of bearing Arms,
is the proper, natural and safe defence of a free State; that the Militia
should not be subject to Martial Law, except in time of War Rebellion or
Insurrection. That standing Armies in time of Peace are dangerous to
Liberty, and ought not to be kept up, except in Cases of necessity; and that
at all times, the Military should be under strict Subordination to the Civil
Power. That in time of Peace no Soldier ought to be quartered in any House
without the consent of the Owner, and in time of War only by the civil
Magistrate in such manner as the Laws may direct…that the Militia of any
State shall not be compelled to serve without the limits of the State for a
longer term than six weeks, without the Consent of the Legislature thereof.

HOUSE COMMITTEE REPORT, July 28, 1789.

…[6] “A well regulated militia[1], composed of the body of the people, being
the best security of a free State, the right of the people to keep and bear
arms shall not be infringed, but no person religiously scrupulous shall be
compelled to bear arms.”[2]

HOUSE RESOLUTION AND ARTICLES OF AMENDMENT; August 24, 1789.

ARTICLE THE FIFTH. A well regulated militia, composed of the body of the
People, being the best security of a free State, the right of the People to
keep and bear arms, shall not be infringed, but no one religiously
scrupulous of bearing arms shall be compelled to render military service in
person.[3]

On September 4, the Senate agreed to amend Article 5 to read as follows: A
well regulated militia, being the best security of a free state, the right
of the people to keep and bear arms, shall not be infringed.

On September 9, the Senate replaced “the best” with “necessary to the.” On
the same day, the Senate disagreed to a motion to insert “for the common
defence” after “bear arms.” This article and the following ones were then
renumbered as articles 4 through 8.

ARTICLE THE SIXTH. No soldier shall, in time of peace, be quartered in any
house without the consent of the owner, nor in time of war, but in a manner
prescribed by law.

ADDITIONAL ARTICLES OF AMENDMENT; September 8, 1789

That no standing army or regular troops shall be raised or kept up in time
of peace, without the consent of two thirds of the members present in both
houses. That no soldier shall be enlisted for any longer term than four
years, except in time of war, and then for no longer term than the
continuance of the war. That each State respectively shall have the power to
provide for organizing, arming, and disciplining its own militia, whensoever
Congress shall omit or neglect to provide for the same. That the militia
shall not be subject to martial law, except when in actual service in time
or war, invasion or rebellion; and when not in the actual service of the
United States, shall be subject only tosuch fines, penalties, and
punishments as shall be directed or inflicted by the laws of its own State.

SENATE AMENDMENTS, September 9, 1789

[8] To erase the word “fifth” — & insert — fourth — & to erase from the
fifth article the words, “composed of the body of the people — the word
“best” — & the words “but no one religiously scrupulous of bearing arms
shall be compelled torender military service in person” — & insert after
the word “being” in the first line — necessary to.

ARTICLES OF AMENDMENT, as Agreed to by the Senate,
September 14, 1789

ARTICLE THE FOURTH. 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. (This eventually passed as the Second Article of the Bill of Rights.)

DEBATE ON THE MILITIA AND RIGHT TO KEEP AND BEAR IN THE HOUSE (Senate
debates were secret).

The Congressional Register, 17 August 1789

The house went into a committee of the whole, on the subject of amendments.
The 3d clause of the 4th proposition in the report was taken into
consideration, being as follows; “A well regulated militia, composed of the
body of the people, being the best security of a free state; the right of
the people to keep and bear arms shall not be infringed, but no person,
religiously scrupulous, shall be compelled to bear arms.

Mr. Eldridge Gerry — This declaration of rights, I take it, is intended to secure the
people against the mal-administration of the government; if we could suppose
that in all cases the rights of the people would be attended to, the
occasion for guards of this kind would be removed. Now, I am apprehensive,
sir, that this clause would give an opportunity to the people in power to
destroy the constitution itself. They can declare who are those religiously
scrupulous, and prevent them from bearing arms. What, sir, is the use of a
militia? It is to prevent the establishment of a standing army, the bane of
liberty. Now it must be evident, that under this provision, together with
their other powers, congress could take such measures with respect to a
militia, as make a standing army necessary. Whenever government mean to
invade the rights and liberties of the people, they always attempt to
destroy the militia, in order to raise an army upon their ruins. This was
actually done by Great Britain at the commencement of the late revolution.
They used every means in their power to prevent the establishement of an
effective militia to the eastward. The assembly of Massachusetts, seeing the
rapid progress that administration were making, to divest them of their
inherent privileges, endeavored to counteract them by the organization of
the militia, but they were always defeated by the influence of the crown.

Mr. Seney — Wished to know what question there was before the committee, in
order to ascertain the point upon which the gentleman was speaking?

Mr. Gerry — Replied, that he meant to make a motion, as he disapproved of
the words as they stood. He then proceeded, No attempts that they made, were
successful, until they engaged in the struggle which emancipated them at
once from their thralldom. Now, if we give a discretionary power to exclude
those from militia duty who have religious scruples, we may as well make no
provision on this head; for this reason he wished the words to be altered so
as to be confined to persons belonging to a religious sect, scrupulous of
bearing arms.

Mr. Jackson — Did not expect that all the people of the United States would
turn Quakers or Moravians, consequently one part would have to defend the
other, in case of invasion; now this, in his opinion, was unjust, unless the
consitution secured an equivalent, for this reason he moved to amend the
clause, by inserting at the end of it “upon paying an equivalent to be
established by law.”

Mr. Smith, (of S.C.) — Enquired what were the words used by the conventions
respecting this amendment; if the gentleman would conform to what was
proposed by Virginia and Carolina, he would second him: He thought they were
to be excused provided they found a substitute.

Mr. Jackson — Was willing to accommodate; he thought the expression was,
“No one, religiously scrupulous of bearing arms, shall be compelled to
render military service in person, upon paying an equivalent.”

Mr. Sherman — Conceived it difficult to modify the clause and make it
better. It is well-known that those who are religiously scrupulous of
bearing arms, are equally scrupulous of getting substitutes or paying an
equivalent; many of them would rather die than do either one or the other —
but he did not see an absolute necessity for a clause of this kind. We do
not live under an arbitrary government, said he, and the states respectively
will have the government of the militia, unless when called into actual
service; beside, it would not do to alter it so as to exclude the whole of
any sect, because there are men amongst the quakers who will turn out,
notwithstanding the religious principles of this society, and defend the
cause of their country. Certainly it will be improper to prevent the
exercise of such favorable dispositions, at least while it is the practice
of nations to determine their contests by the slaughter of their citizens
and subjects.

Mr. Vining — Hoped the clause (Fourth Article above…) would be suffered to remain as it stood,
because he saw no use in it if it as amended so as to compel a man to find a
substitute, which, with respect to the government, was the same as if the
person himself turned out to fight.

Mr. Stone — Enquired what the words “Religiously scrupulous” had reference
to, was it of bearing arms? If it was, it ought so to be expressed.

Mr. Benson — Moved to have the words “But no person religiously scrupulous
shall be compelled to bear arms” struck out. He would always leave it to the
benevolence of the legislature — for, modify it, said he, as you please, it
will be impossible to express it in such a manner as to clear it from
ambiguity. No man can claim this indulgence of right. It may be a religious
persuasion, but it is no natural right, and therefore ought to be left to
the discretion of the government. If this stands part of the constitution,
it will be a question before the judiciary, on every regulation you make
with respect to the organization of the militia, whether it comports with
this declaration or not? It is extremely injudicious to intermix matters of
doubt with fundamentals. I have no reason to believe but the legislature
will always possess humanity enough to indulge this class of citizens in a
matter they are so desirous of, but they ought to be left to their
discretion.

The motion for striking out the whole clause being seconded, was put, and
decided in the negative, 22 members voting for it, and 24 against it.

Mr. Gerry — Objected to the first part of the clause, on account of the
uncertainty with which it is expressed: a well-regulated militia being the
best security of a free state, admitted an idea that a standing army was a
secondary one. It ought to read “a well regulated militia, trained to arms,”
in which case it would become the duty of the government to provide this
security, and furnish a greater certainty of its being done.

Mr. Gerry’s motion not being seconded, the question was put on the clause as
reported, which being adopted.

Mr. Burke — Proposed to add to the clause just agreed to, an amendment to
the following effect: “A standing army of regular troops in time of peace,
is dangerous to public liberty, and such shall not be raised or kept up in
tim of peace but from necessity, and for the security of the people, nor
then without the consent of two-thirds of the members present of both
houses, and in all cases the military shall be subordinate to the civil
authority.” This being seconded.

Mr. Vining — Asked whether this was to be considered as an addition
to the last clause, or an amendment by itself? If the former, he would
remind the gentleman the clause was decided; if the latter, it was
improper to introduce new matter, as the house had referred the report
specially to the committee of the whole.

Mr. Burke — Feared that what with being trammelled in rules, and the
apparent disposition of the committee, he should not be able to get them to
consider any amendment; he submitted to such proceeding because he could not
help himself.

Mr. Hartley — Thought the amendment in order, and was ready to give his
opinion of it. He hoped the people of America would always be satisfied with
having a majority to govern. He never wished to see two-thirds or
three-fourths required, because it might put it in the power of a small
minority to govern the whole union.

The question on Mr. Burke’s motion was put, and lost by a majority of 13.

AUGUST 20, 1789

Mr. SCOTT objected to the clause in the sixth amendment, “No person
religiously scrupulous shall be compelled to bear arms.” He said, if this
becomes part of the constitution, we can neither call upon such persons for
services nor an equivalent; it is attended with still further difficulties,
for you can never depend upon your militia. This will lead to the violation
of another article in the constitution, which secures to the people the
right of keeping arms, as in this case you must have recourse to a standing
army. I conceive it is a matter of legislative right altogether. I know
there are many sects religiously scrupulous in this respect: I am not for
abridging them of any indulgence by law; my design is to guard against those
who are of no religion. It is said that religion is on the decline; if this
is the case, it is an argument in my favour; for when the time comes that
there is no religion, persons will more generally have recourse to these
pretexts to get excused.

Mr. BOUDINOT said that the provision in the clause or something like it
appeared to be necessary. What dependence can be placed in men who are
conscientious in this respect? Or what justice can there be in compelling
them to bear arms, when, if they are honest men, they would rather die than
use them. He then adverted to several instances of oppression in the case
which occurred during the [revolutionary] war. In forming a militia we ought
to calculate for an effectual defence, and not compel characters of this
description to bear arms. I wish that in establishing this government we may
be careful to let every person know that we will not interfere with any
person’s particular religious profession. If we strike out this clause, we
shall lead such persons to conclude that we mean to compel them to bear
arms.

Mr. VINING and Mr. JACKSON spake upon the question. The words ‘in person’
were added after the word ‘arms’, and the amendment was adopted.

LETTERS AND DOCUMENTS REFERING TO KEEPING AND BEARING

Fisher Ames to George R. Minor. 12 June, 1789

The civil departments will employ us next, and the judiciary the Senate.
They will finish their stint, as the boys say, before the House has done.
Their number is less, and they have matured the business in committee. Yet
Mr. Madison has inserted, in his amendments, the increase of
representatives, each State having two at least. The rights of conscience,
of bearing arms, of changing the government, are declared to be inherent in
the people. Freedom of the press too. There is a prodigious great dose for a
medicine. But it will stimulate the stomach as little as hasty-pudding. It
is rather food than physic. An immense mass of sweet and other herbs and
roots for a diet drink.

Samuel Nasson to George Thatcher. 9 July 1787

I find that Amendments are once again on the Carpet. I hope that such may
take place as will be for the Best Interest of the whole. A Bill of rights
well secured that we the people may know how far we may Procede in Every
Department then their will be no Dispute Between people and rulers in that
may be secured the right to keep and bear arms for Common and Extraordinary
Occations such as to secure ourselves against the wild Beast and also to
amuse us by fowling and for our Defence against a Common Enemy you know to
learn the Use of arms is all that can Save us from a forighn foe that may
attempt to subdue us for if we keep up the Use of arms and become well
acquainted with them we Shall allway be able to look them in the face that
arise up against us for it is impossible to Support a Standing army large
Enough to Guard our Lengthy Sea Coast and now Spare me on the subject of
Standing armys in a time of Peace they allway was first or last the
downfall of all free Governments it was by their help Caesar made proud Rome
Own a Tyrant and a Traytor for a Master.

Only think how fatal they ware to the peace of this Countery in 1770 what
Confeusion they Brought on the fatal 5 of March [the Boston Massacre] I
think the remembrance of that Night is enough to make us Carefull how we
Introduce them in a free republican Government — I therefore hope they will
be Discouraged for I think the man that Enters as a Soldier in a time of
peace only for a living is only a fit tool to inslave his fellows.

For this purpose was a Standing Army first introduced in the World another
that I hope will be Established in the bill is tryals by Juryes in all
Causes Excepting where the parties agree to be without I never wish to be in
the power of any Sett of Men let them be Never so good but hope to be left
in the hands of my Countery and if any Enemey means to bribe he must have
money anough to settle it with the Country. (Original documents spelling as written…)

ROGER SHERMAN’S PROPOSED COMMITTEE REPORT. 21-28 July 1789
…5 The Militia shall be under the government of the laws of the respective
States, when not in the actual Service of the united States, but Such rules
as may be prescribed by Congress for their uniform organisation & discipline
shall be observed in officering and training them. but military Service
Shall not be required of persons religiously Scrupulous of bearing arms.

6 No Soldier Shall be quartered in any private house, in time of Peace, nor
at any time, but by authority of law.

Richard Henry Lee to Charles Lee, 28 August 1789

The enclosed paper will shew you the amendments passed the H. of R. to the
Constitution — They are short of som essentials, as Election interference &
Standing Army &c. I was surprised to find in the Senate that it was proposed
we should postpone the consideration of Amendments until Experience had
shewn the necessity of any — As if experience was more necessary to prove
the propriety of those great principles of Civil liberty which the wisdom of
Ages has found to be necessary barriers against the encroachments of power
in the hands of frail Men! My Colleague was sick & absent. The laboring oar
was with me. A Majority of 2 thirds however agreed to take the Amendments
under consideration next Monday — I hope that if we cannot gain the whole
loaf, we shall at least have some bread.

Theodorick Bland Randolph to St. George Tucker, 9 September 1789

The house of Representatives have been for some time past engaged on the
subject of amendments to the constitution, though in my opinion they have
not made one single material one. The senate are at present engaged on that
subject; Mr. Richd. H. Lee told me that he proposed to strike out the
standing army in time of peace but could not carry it. He also sais that it
has been proposed, and warmly favoured that, liberty of Speach and of the
press may be stricken out, as they only tend to promote licenciousness. If
this takes place god knows what will follow.

John Randolph to St. George Tucker, 11 September 1789

A majority of the Senate for not allowing the militia arms & if two thirds
had agreed it would have been an amendment to the Constitution. They are
afraid that the Citizens will stop their full Career to Tyranny &
Oppression.

Richard Henry Lee to Patrick Henry, 14 September 1789[5]

[I have] since waited to see the issue of the proposed articles to the
Constitution, that I might giver you the most [exact] account of that
business. As they came from the H. of R. they were very far short of the
wishes of our Convention, but as they are returned by the Senate they are
certainly much weakened. You may be assured that nothing on my part was left
undone to prevent this, and every possible effort was used to give success
to all the Amendments proposed by our Country — We might as well have
attempted to move Mount Atlas upon our shoulders — In fact, the idea of
subsequent Amendments was delusion altogether, and so intended by the
greater part of those who arrogated to themselves the name of Federalists. I
am grieved to see that too many look at the Rights of the people as a Miser
examines a Security to find a flaw in it! The great points of free election,
Jury trial in criminal cases much loosened, the unlimited right of Taxation,
and Standing Armies in peace, remain as they were. Some valuable Rights are
indeed declared, but the powers that remain are very sufficient to render
them nugatory at pleasure.

The most essential danger from the present System arises, [in my] opinion,
from its tendency to a Consolidated government, instead of a Union of
Confederated States — The history of the world and reason concurs in
proving that so extensive a Territory [as the] U. States comprehend never
was, or can be governed in freed[om] under the former idea — Under the
latter is it abundantly m[ore] practicable, because extended representation,
know[lege of] character, and confidence in consequence, [are wanting to sway
the] opinion of Rulers, without which, fear the offspri[ng of Tyranny] can
alone answer. Hence Standing Armies, and des[potism] follows. I take this
reasoning to be unrefutable, a[nd] therefore it becomes the friends of
liberty to guard [with] perfect vigilance every right that belongs to the
Sta[tes] and to protest against every invasion of them — taking care always
to procure as many protesting States as possible — This kind of vigilance
will create caution and probably establish such a mode of conduct as will
create a system of precedent that will prevent a Consolidating effect from
taking place by slow, but sure degrees. And also not to cease in renewing
their efforts for so amending the federal Constitution as to prevent a
Consolidation by securing the due Authority of the States. At present
perhaps a sufficient number of Legislatures cannot be got to agree in
demanding a Convention — But I shall be much mistaken if a great
sufficiency will not e’er long concur in this measure. The preamble to the
Amndmnts is realy curious — A careless reader would be apt to suppose that
the amendments desired by the States had been graciously granted. But when
the thing done is compared with that desired, nothing can be more unlike…

By comparing the Senate amendments with [those] from below by carefully
attending to the m[atter] the former will appear will calculated to enfeeble
[and] produce ambiguity — for instance — Rights res[erved] to the States
or the People — The people here is evidently designed fo[r the] People of
the United States, not of the Individual States [page torn] the former is
the Constitutional idea of the people — We the people &c. It was affirmed
the Rights reserved by the States bills of rights did not belong to the
States — I observed that then they belonged to the people of the States,
but that this mode of expressing was evidently calculated to give the
Residuum to the people of the U. States, which was the Constitutional
language, and to deny it to the people of the Indiv. State — At least that
it left room for cavil & false construction — They would not insert after
people thereof — altho it was moved.

Also on August 17, 1789, Benson made a motion to strike out “but no person
religiously scrupulous shall be compelled to bear arms.” The COWH turned
down the motion by a vote of 24 – 22.

Also on August 17, 1789, Burke proposed to insert “A standing army of
regular troops in time of peace, is dangerous to public liberty, and shall
not be raised or kept up in time of peace but from necessity, and for the
security of the people, nor then withut the consent of two-thirds of the
members present of both houses, and in all cases the military shall be
subordinate to the civil authority.” This was voted down by a majority of
13.

On August 20, the House agreed to insert “in person,” so that the clause
read, “but no person religiously scrupulous shall be compelled to bear arms
in person.”

On August 24, 1789, a House Resolution and Articles of the Bill of Rights were
passed and sent to the Senate. The Bill then read: “Article the Fifth.
A well regulated militia, composed of the body of the People, being the best
security of a free State, the right of the People to keep and bear arms,
shall not be infringed, but no one religiously scrupulous of bearing arms,
shall be compelled to render military service in person.”

On September 4, 1789, the Senate disapproved a motion to insert at the end,
“that standing armies, in time of peace, being dangerous to Liberty, should
be avoided as far as the circumstances and protection of the community will
admit; and that in all cases the military should be under strict
subordination to, and governed by the civil Power. That no standing army or
regular troops shall be raised in time of peace, without the consent of two
thirds of the Members present in both Houses, and that no soldier shall be
inlisted for any longer term than the continuance of the war.”

Also on September 4, 1789, the Senate agreed to amend Article 5 to read: “A
well regulated militia, being the best security of a free state, the right
of the people to keep and bear arms, shall not be infringed.”

On September 8, 1789, the Senate Legislative Journal shows the following
entry as an additional article : “That each State respectively
shall have the power to provide for organizing, arming, and disciplining its
own militia, whensoever Congress shall omit or neglect to provide for the
same. That the militia shall not be subject to martial law, except when in
the actual service in time of war, invasion or rebellion; and when not in
the actual service of the United States, shall be subject only to such
fines, penalties, and punishments as shall be directed or inflicted by the
laws of its own State.”

On September 9, 1789 the Senate replaced “the best” with “necessary to the.”
Thus, the proposed article read: “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.”

On September 14, 1789, the Senate agreed to twelve Articles.
The preamble reads: “The Conventions of a Number of the States having, at
the Time of their adopting the Constitution, expressed a Desire, in Order to
prevent misconstruction or abuse of its Powers, that further declaratory and
restrictive Clauses shuld be added: And as extending the Ground of public
Confidence in the Government, will best insure the beneficent end of its
Institution — ” A joint resolution of the Senate and House of
Representatives was drafted to forward the twelve amendments to the States
for consideration. The Fourth Article read: “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.”

http://www.nidlink.com/~bobhard/billofrt.jpg this is a jpeg of the original document…