Justice Joseph Story
Commentaries on the Constitution of the United States

The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses with which they are attended and the facile means which they afford to ambitious and unprincipled rulers to subvert the government or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” 

Justice Joseph Story, Commentaries on the Constitution of the United States (Boston, Massachusetts: Little Brown and Company, Fifth Edition, 1891), Volume 2, § 1897, at 646. 


Justice Joseph Story

Justice Joseph Story was a member of the Supreme Court during the time of John Marshall in the early 1800′s. He wrote a book called, “Commentaries on the Constitution of the United States”, which is a textbook analyzing the United States Constitution. Constitutional law in those days, was taught from textbooks. Law professors would go through the Constitution, line by line, clause by clause, explaining the meanings and give some analysis relating to the debates among the Founding Fathers and the history of the Colonies. Justice Story’s Commentaries, along with Sir William Blackstone’s Commentaries on the Laws of England were among the best known and widely regarded works for understanding the United States Constitution. Yet no law schools today use these books.

“[T]he Militia of the several States” are the constitutional institutions which, properly organized, would secure WE THE PEOPLE’S “right to keep and bear Arms” and maximize its political significance and practical efficacy. Yet next to no Americans know anything about them today. The main sources of this problem are two: first, the general antinomian notion that the Constitution is merely a set of “legal technicalities”, many of them stodgily anachronistic, which can be disregarded whenever what passes for more modern political policy counsels the convenience of doing so; and second, the specific concern Joseph Story long ago pinpointed, that selfish individuals would desire to be dispensed from personal service in the Militia whenever they had no reason to fear the consequences—what he recognized even in the early 1830s

“The importance of a well-regulated militia would seem so undeniable, it cannot be disguised that, among the American people, there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization it is difficult to see. There is certainly no small danger that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by th[e Second Amendment] of our national bill of rights.” (footnote 1).

  • Story’s concern that the people themselves might lose sight of the importance of, then seek excuses for shirking, their Militia duties was not simply the product of observations in his own time, but was well-founded in pre-constitutional history, too.

    Story’s concern that the people themselves might lose sight of the importance of, then seek excuses for shirking, their Militia duties was not simply the product of observations in his own time, but was well-founded in pre-constitutional history, too.

    As early as 1664, Rhode Island’s officials complained of “the great neglect and defficiency in the vse of the military exercise in most townes in this Collony” and “the danger, reproach, and other inconveniancyes lying vpon, or lyckly to ensue vnto the whole in that neglecte”. (footnote 1) And in 1665, the General Assembly took into its

    consideration the great defect in training, occasioned by the remissnes of some vnder the pretence of the burden in training soe often as eight dayes in the yeare, and other complaining of the great inequality, in that the poorest being vnable to spare wherewith to maintaine armes and amunition, as powder, &c., yett are forced by the law to beare armes as well as the most able; to redresse which grevances, it is enacted and declared, that the sixe dayes only in the yeare be ordered * * * for the milletary exercise in training * * * . And for the incorradgement of the meaner sort [that is, the poor], there shall be alowed yearly nine shillings in currant pay to or for each soldiare listed in the traine band to be duely payed * * * at the Captain’s discretion for the repaireing of armes, &c. * * * and * * * nine shillings yearly to be payed * * * to such parents and masters as find armes and amunition (as they must doe) for their sones and sarvants that are * * * to traine; * * * and for the raysing the * * * nine shillings a yeare for each souldier, * * * each towne shall * * * make a rate [that is, levy a tax] vpon each one rateable within the precinckes of the towne, with as much equality as may be, according to each ones estate[.] (footnote 2)

    Footnotes:

    1.) EN-696 — Proceedings of a Meetinge of the Generall Assembly, May the fowerth, 1664, at Newport, in Rhode Island Records, Volume 2, at 51-52. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 290.

    2.) EN-697 — Acts and Orders of the Generall Assembly, sitting at Newport, May the 3, 1665, in Rhode Island Records, Volume 2, at 114-116. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 290.

Ignorance to the Militia today gains an invaluable prop from both sides of the individual “gun rights” debate who disregard entirely what the Second Amendment itself declares “necessary to the security of a free State”—“A well regulated Militia”—the source of average American’s governmental legal authority to provide themselves with “the security of a free State” from any and all threats—the worse being rogue government officials who break the law under color of “law”.

Large centralized, bureaucratic, and professional police, domestic-security, and intelligence establishments—especially those that can exert their authority by force of arms in one State or locality with personnel drawn from other States and Localities—should not be kept up either, because they, too, perhaps to a degree even greater than “large military establishments and standing armies”, provide a “facile means * * * to ambitious and unprincipled rulers to subvert the government or trample upon the rights of the people”. The history of the Twentieth Century emphatically teaches that such police, domestic-security, and intelligence establishments inevitably tend—if they are are not always intended from their inceptions—to serve the special interests of self-perpetuating political-cum-economic élitists at common people’s expense. Thus, they are always at least potential instruments for tyranny. Militia, conversely, provide a people with forces for deterrence—and where that fails, defense—and where that fails, resistance. (footnote 2)

  • Footnotes

    1.) Commentaries on the Constitution of the United States (Boston, Massachusetts: Little, Brown, and Company, Fifth Edition, 1905), Volume 2, § 1897, at 646 (emphasis supplied).

    2.) Constitutional “Homeland Security”, Volume I, The Nation in Arms, by Dr. Edwin Vieira, Jr., page 38.