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Joseph Story

Justice Story’s Commentaries was among the best known and widely regarded works for understanding the United States Constitution. Yet no law schools today use these books.

Last Updated on June 2, 2021 by Constitutional Militia

Justice Joseph Story : “Commentaries on the Constitution of the United States”

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 that era, 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.”[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.

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

consideration the great defect in training, occasioned by the remissnes of some under 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 unable 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[.][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.

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.

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