Articles of Confederation and the Militia

I have multiple mini U.S. Constitutions, various places over the years providing them free of charge. I once (it very well might be lost) had a copy where I had to tape a copy of the 27th Amendment, it had not originally been included. That amendment was ratified in 1992 as a bit of a constitutional joker.

Some copies have other materials. One useful inclusion is the "original U.S. constitution," the Articles of Confederation. The AOC was ratified in 1781 and replaced by the Constitution in 1789. The Constitution was ratified in 1788. Nonetheless, the Supreme Court held that it did not operate until the new government began in 1789. 

The Articles of Confederation does not receive enough love. A significant amount of activity from the treaty that ended the war to the Northwest Ordinance occurred under its aegis. Chunks of it were retained in the new constitution later ratified. And, the differences between the two documents are useful in helping understand the meaning of the Constitution.

Consider this provision:

Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.

The Tenth Amendment of the Constitution:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The word "expressly" is not present. This is of some importance. Many people (including Thomas Jefferson) were strongly states rights.* Such people continue to cite the Tenth Amendment as if the word "expressly" is there. It is not. The amendment does not erase the concept of implied powers. The word "expressly" would have changed things there.

How the Second Amendment was originally understood is also clarified to some degree by the AOC. Consider this provision:

No vessels of war shall be kept up in time of peace, by any state, except such number only, as shall be deemed necessary by the United States, in Congress assembled, for the defense of such state, or its trade; nor shall any body of forces be kept up, by any state, in time of peace, except such number only as, in the judgment of the united states, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such state; but 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 camp equipage.

The first part is retained in abbreviated form (the AOC is more detailed regarding various things**) in Art. 1, sec. 9. 

The military was a national institution. How should states handle day-to-day domestic defense? Modern police departments did not arise until to 19th Century. The answer would largely be a militia made of ordinary persons. A limited number of sheriffs and the like would also be involved.  

The people's militia as a basic part of a republic was discussed in various accounts. Machiavelli, for instance, appealed to its value in his famous work. The concept was not some anarchic realm appealed to by some today. It was one overseen by the government. The governor was the leader of the militia. People had an obligation to serve.  

"People" here generally meant able-bodied white adults with some dispensation for conscientious objectors. Equal protection would expand its reach over time. For instance, in Great Britain, it was a right for Protestants. In the United States, even in antebellum times, free blacks had a limited role. Of course, this was expanded later on.  

The second part is also implied in a clause regarding congressional power to call forth the militia for specific purposes ("execute the Law of the Union, suppress Insurrections and repel Invasions"). As Stevens' dissent in D.C. v. Heller argues, the Constitution did not remove state militia. 

The Constitution does provide Congress explicit power "to provide for the organizing, arming, and discipline" of the militia. Congress also has the power to regulate it when they are called up for federal service. The concern that this power would threaten state power over the militia was the immediate impetus for the ratification of the Second Amendment.  

(The last part of the AOC clause speaks of "field pieces" and the like, which does not appear to be particularly "militia-like" in nature though the semicolon suggests the whole section flows together in some sense.)

The AOC provides a duty (which like responsibility for funding the central government was largely hortatory) for the states to maintain a militia. The militia is not merely made up of individuals with the right ("duty" is rarely referenced these days) to possess firearms. The militia was more akin to a jury, which the government also calls up and oversees. 

I am not appealing here to a firm original understanding approach. As Justice Alito himself references in McDonald v. Chicago (application of the Second Amendment to the states), the understanding behind the amendment underwent a change. In the mid-19th Century, there was a growing understanding that the amendment protected an individual right to own firearms. The understanding was present when the Fourteenth Amendment was ratified.  A rural freeman would have a right to have a firearm to protect his home from nightriders. It was not just a "militia right."  

Likewise, the whole debate is somewhat beside the point. The Second Amendment having a limited purpose would not erase the right to own weapons for other purposes. There was also a common law right of self-defense.  People had the right to own a weapon for that purpose along with such needs as hunting. Finally, rights were not absolute, even if a constitutional provision appears to be framed that way.  

Saul Cornell is one useful source for the "two threads" of gun regulation (militia/personal) in antebellum times. There are lots of authors who cover this ground. I reject the idea the Second Amendment is just a "racist" amendment. The famous "minute men" of the Revolutionary War, for instance, arose in Massachusetts. Guns were not only around to enforce slavery. The misuse of governmental power and selective application of rights goes far beyond any one area. 

My concern here is to provide clarity and context. The AOC and original Constitution reference the "militia" multiple times. Likewise, it is indirectly referenced by limits on states to have "troops" or "engage in war." Such barriers should be read in the context of other means of societal defense.

My extended remarks here arose while I was looking over a copy of the Constitution. A close reading (or even a reading) of both constitutions can be quite helpful. We saw how a sloppy reading led to abuse in the Trump insurrection case.  The same applies in recent Second Amendment case law. 

I find this depressing and distressing. The Constitution is attributed to "We the People." We have the ability and duty to understand it the best we can. 

The Articles of Confederation should be more of a part of this. The lack of good books on how the AOC was applied during its short but still notable life is part of the problem. Most accounts focus on its creation and the general conclusion it was not satisfactory.  

We should have more than that.  

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* One person who I respect has consistently online rejected the term "state rights" since only people have rights. 

I respect his knowledge of the Constitution and its formation. Nonetheless, the term was commonly used by the Founders and their generation.  

** The AOC becomes a trudge to read when you reach the later articles, especially Art. IX. 

One rather ridiculously expansive paragraph involving a petition to Congress to settle disputes is likely to cause your eyes to glaze over. Along with the section before, it does provide a precedent for congressional power to create federal courts.  

We should be particularly grateful for those who were in charge of the final text of the Constitution. We can carp that parts are too brief or vague, but as a matter of clarity, it is a great improvement.