Last Updated on January 17, 2021 by Constitutional Militia
Militia: Free Market Access to Arms
Every individual eligible for Militia service must enjoy untrammeled access to Arms, accoutrements, and ammunition in the free market as a component of regulation.
Constitutional Militia: Reliance on the Free Market for Arms
It is not enough to assert that every individual possibly eligible to be a member of “the Militia of the several States” may acquire, possess, and own as of right whatever firearms, ammunition, and accoutrements are suitable for any type of Militia service. Adequate and permanent sources of that equipment must be identified and secured as well. The primary source must be the free market.
A primary reliance on the free market for arming the Militia was the pre-constitutional legal pattern. This, of course, is not simply idle “conjecture, supposition, or mere reasoning on the meaning or intention of the writing” in the Constitution,[1] but instead the proper interpretation of that document based upon undeniable pre-constitutional legal history.
During the entire pre-constitutional era, most Americans obtained the firearms and ammunition necessary for their Militia service through private purchases in the free market. Nowhere throughout America did any of the relevant statutes order most (or even many) Militiamen to be supplied with public arms that they then kept in their private homes, let alone to repair to some public arsenal, magazine, or other facility in order to retrieve public arms, and then to return those arms to such a place after they had performed their Militia service. Rather, in the overwhelming majority of cases, the firearm, ammunition, and accoutrements each able-bodied adult free male (not otherwise exempted) was required to obtain and thereafter permanently to possess in his own home in order to fulfill his Militia duties were to be his own personal property, which he was to purchase for himself in the free market if he were financially capable of doing so—not equipment manufactured, supplied, owned, or controlled by any level of government or by any public official.[2]
Of course, some exceptional situations did exist. When individuals were too poor to acquire firearms through their own efforts, the Militia (through fines imposed on defaulters) or Local governments (through general taxes) might supply, and then possibly control access to, the necessary equipment. For example, in 1776 Rhode Island provided that
• “each town” should supply all of its “inhabitants * * * who are not able to purchase” arms “with a good fire-arm, bayonet and cartouch box, at such town’s expense, to be lodged with the captains of such district wherein such poor persons belong, for their use upon any proper occasion”;[1] and
• “the Colony” would purchase “Two Thousand Stand of good Fire-Arms”, to be “distributed to each Town, in Proportion to the Number of Polls upon the Alarm List therein”, with the Town Councils “to determine what Persons * * * shall have the Benefit and Use of the Arms provided * * * , and be exempted from providing themselves as the Law requires”.[2]
Footnotes:
1.) EN-2011 — Proceedings of the General Assembly, held for the Colony of Rhode Island and Providence Plantations, at Providence, on the second Monday in January, 1776, in Rhode Island Records, Volume 7, at 422-423. 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 1114.
2.) EN-2012 — An Act for purchasing Two Thousand Arms for the Colony, &c., At the GENERAL ASSEMBLY of the GOVERNOR and COMPANY of the English Colony of Rhode-Island and Providence Plantations, in New- England, in America, begun and holden (in Consequence of Warrants issued by his Honor the Governor) at East-Greenwich, within and for the said Colony, on Monday the Eighteenth Day of March, One Thousand Seven Hundred and Seventy-six, in Rhode Island Acts and Resolves, Volume 8 [9], at {303, 304-305}. 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 1114.
Self-evidently, the veritable legion of legislators who enacted, reënacted, and reënacted yet again these statutes during the late 1600s and throughout the 1700s could never have expected most Militiamen
• to arm themselves—for instance, to “find themselves armes” (Rhode Island, 1665);[1] “to accoutre themselves with * * * carbine and pistol” (Rhode Island, 1701);[2] “to provide himself with Arms, and other Accoutrements” (Rhode Island, 1755);[3] “to equip himself completely with arms and ammunition” (Rhode Island, 1755);[4] “to equip themselves with a good fire-arm”(Rhode Island, 1776);[5] and to “provide, and at all times be furnished, at his own Expence * * * with one good Musquet” (Rhode Island, 1779);[6] or
• to bring to their service the arms the laws specified—for instance, “such arms as he is already furnished with” (Virginia, 1723 and 1738);[7] “such arms as he hath, and is already furnished with”(Virginia, 1755, 1757, 1759, 1762, 1766, and 1771);[8] “a good rifle, if to be had” (Virginia, 1775);[9] “such arms as they have” (Virginia, 1775);[10] “a good Gun, being his own Property”(Rhode Island, 1781);[11] and “the best arms and accoutrements they can get” (Virginia, 1784 and 1785),[12]
If no permanent, reliable, efficient, and convenient source had existed from which one generation of Militiamen after another could readily have obtained such arms. Similarly, those selfsame legislators could never have expected either the Militia as institutions or Local governments to have been able to acquire and distribute whatever additional firearms and ammunition might have become necessary in exceptional situations (for example, to supply Militiamen too poor to purchase their own arms), had no such source been available from which Militia officers and public functionaries could have acquired that equipment. Thus, all of the Militia laws and related statutes of that period presupposed, depended upon, encouraged, and implicitly protected against interference common Americans’ and even their governments’ access to a widespread, vibrant, and thoroughly free market in firearms, ammunition, and accoutrements suitable for Militia service. No statute of that era ever questioned the usefulness of, let alone attempted to constrain or suppress, the free market in arms. Instead, every statute implicitly took for granted, not only that the free market was adequate for the purpose of arming the Militia, but also that it was preferable to any other source of the equipment necessary to make the Militia workable establishments in all but one of the Colonies and then in every independent State.[13]
Footnotes:
1.) EN-2016 — Acts and Orders of the Generall Assembly, sitting at Newport, May the 3, 1665, in Rhode Island Records, Volume 2, at 115 (emphasis supplied). 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 1115.
2.) EN-2017 — At the Generall Assembly and Election held for the Collony at Newport, the 7th of May, 1701, in Rhode Island Records, Volume 3, at 433 (emphasis supplied). 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 1115.
3.) EN-2018 — An ACT in Addition to the several Acts regulating the Militia in this Colony, At the GENERAL ASSEMBLY of the Governor and Company of the English Colony of Rhode-Island, and Providence-Plantations, in New-England, in AMERICA; begun and held by Adjournment at Providence, on the first Monday of February, One Thousand Seven Hundred and Fifty-five, in Rhode Island Acts and Resolves, Volume 2, at {72} (emphasis supplied). 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 1115
4.) EN-2019 — Proceedings of the General Assembly, held for the Colony of Rhode Island and Providence Plantations, at Providence, on Wednesday, the 28th day of June, 1775, in Rhode Island Records, Volume 7, at 358 (emphasis supplied). 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 1115.
5.) EN-2020 — Proceedings of the General Assembly, held for the Colony of Rhode Island and Providence Plantations, at Providence, on the second Monday in January, 1776, in Rhode Island Records, Volume 7, at 423 (emphasis supplied). 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 1115.
6.) EN-2021 — An ACT for the better forming, regulating and conducting the military Force of this State, AT the GENERAL ASSEMBLY of the Governor and Company of the State of Rhode-Island, and Providence-Plantations, begun and holden at South-Kingstown, within and for the State aforesaid, on the last Monday in October, One Thousand Seven Hundred and Seventy-nine, in Rhode Island Acts and Resolves, Volume 10 [12], at {31-32}. 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 1115.
7.) EN-2022 — CHAP. II, An Act for the settling and better Regulation of the Militia, § IX, AT A GENERAL ASSEMBLY, SUMMONED TO BE HELD AT Williamsburg, the fifth day of December, 1722, and by writ of prorogation, begun and holden on the ninth day of May, 1723, in Laws of Virginia, Volume 4, at 120 (emphasis supplied); CHAP. II, An Act, for the better Regulation of the Militia, § XI, AT A GENERAL ASSEMBLY, SUMMONED TO BE HELD AT The Capitol, in the City of Williamsburg, on the first day of August, [1735]. And from thence continued, by several prorogations, to the first day of November, 1738, in Laws of Virginia, Volume 5, at 21 (emphasis supplied). 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 1115.
8.) EN-2023 — CHAP. II, An Act for the better regulating and training the Militia, § XIII, At a General Assembly, begun and held at the College in the City of Williamsburg, on Thursday the twenty seventh day of February, one thousand seven hundred and fifty two. And from thence continued by several prorogations, to Tuesday the fifth day of August, one thousand seven hundred and fifty five, in Laws of Virginia, Volume 6, at 538 (emphasis supplied).
CHAP. III, An Act for the better regulating and disciplining the Militia, § XIV, At a General Assembly, begun and held at the Capitol, in Williamsburg, on Thursday the twenty-fifth day of March, 1756, and from thence continued by several prorogations to Thursday the fourteenth of April, one thousand seven hundred and fifty-seven, in Laws of Virginia, Volume 7, at 99 (emphasis supplied). Continued, CHAP. IV, An Act for continuing an Act, intitutled, An Act for the better regulating and disciplining the Militia, At a General Assembly, begun and held at the Capitol, in Williamsburg, on Thursday the fourteenth day of September, 1758; and from thence continued by several prorogations to Thursday the twenty-second of February, 1759, in Laws of Virginia, Volume 7, at 274; CHAP. III, An Act for amending and further continuing the act for the better regulating and disciplining the Militia, § IX, At a General Assembly, begun and held at the Capitol, in the City of Williamsburg, on Tuesday the 26th of May, 1761, and from thence continued by several prorogations to Tuesday the 2d of November[,] 1762, in Laws of Virginia, Volume 7, at 538; CHAP. XXXI, An act to continue and amend the act for the better regulating and disciplining the militia, § X, At a General Assembly, begun and held at the Capitol in Williamsburg, on Thursday the sixth day of November, 1766, in Laws of Virginia, Volume 8, at 245; CHAP. II, An act for further continuing the act, intituled An act for the better regulating and disciplining the militia, At a General Assembly, begun and held at the Capitol, in the City of Williamsburg, the seventh day of November, one thousand seven hundred and sixty-nine, and from thence continued by several prorogations, and convened by proclamation the eleventh day of July, one thousand seven hundred and seventy-one, in Laws of Virginia, Volume 8, at 503. 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 1115.
9.) EN-2024 — CHAP. I, An ordinance for raising and embodying a sufficient force, for the defence and protection of this colony, AT a Convention of Delegates for the Counties and Corporations in the Colony of Virginia, held at Richmond town, in the county of Henrico, on Monday the seventeenth day of July, one thousand seven hundred and seventy-five, in Laws of Virginia, Volume 9, at 28 (emphasis supplied). 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 1115.
10.) EN-2025 — CHAP. I, An ordinance for raising and embodying a sufficient force, for the defence and protection of this colony, AT a Convention of Delegates for the Counties and Corporations in the Colony of Virginia, held at Richmond town, in the county of Henrico, on Monday the seventeenth day of July, one thousand seven hundred and seventy-five, in Laws of Virginia, Volume 9, at 31 (emphasis supplied). 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 1115.
11.) EN-2026 — An ACT in Addition to, and Amendment of, an Act, passed in October, A.D. 1779, entituled, “An Act for the better forming, regulating and conducting, the military Force of this State”, At the General Assembly of the Governor and Company of the State of Rhode-Island and Providence-Plantations, begun and holden, by Adjournment, at South-Kingstown, within and for the said State, on the Third Monday in March, One Thousand Seven Hundred and Eighty-one, in Rhode Island Acts and Resolves, Volume 11 [14], at {52} (emphasis supplied). 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 1115.
12.) EN-2027 — CHAP. XXVIII, An act for amending the several laws for regulating and disciplining the militia, and guarding against invasions and insurrections, § VI, AT A GENERAL ASSEMBLY Begun and held at the Public Buildings in the City of Richmond, on Monday the eighteenth day of October[,] one thousand seven hundred eighty- four, in Laws of Virginia, Volume 11, at 485 (emphasis supplied); CHAP. I, An act to amend and reduce into one act, the several laws for regulating and disciplining the militia, and guarding against invasions and insurrections, § VI, AT A GENERAL ASSEMBLY BEGUN AND HELD At the Public Buildings in the City of Richmond, on Monday the seventeenth day of October[,] one thousand seven hundred and eighty-five, in Laws of Virginia, Volume 12, at 16 (emphasis supplied). 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 1115.
13.) 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 1115.
Had the term been in then-current usage, “gun control” in the pre-constitutional era would have meant that:
(i) the Colonial and State governments required just about every able-bodied adult free male within their jurisdictions to obtain from the free market a firearm and ammunition suitable for Militia service; and
(ii) in order to effectuate and facilitate the latter policy, the governments encouraged—and certainly took no actions to impede—a free market in arms for all of their citizens.
Confounding those modern ultra-“libertarians” who suppose governmental “regulation” to be necessarily antithetical to “economic freedom”, the market for arms during the pre-constitutional period was far freer than that market is today, not because legislators in those times refrained from “regulating” common Americans’ acquisition, possession, ownership, and use of firearms, ammunition, and related accoutrements, but precisely because the success of their comprehensive “regulation” of the Militia necessitated a market as widespread and efficient, and therefore as free, as it could be. That is, a free market in arms was part and parcel of “regulation” of the Militia; and “regulation” of the Militia reciprocally guaranteed a free market in arms. What Americans came to know as “well regulated Militia” were establishments in the operations of which a free market in arms was not just coincidental or optional, but instead unavoidably necessary, integral, and therefore mandatory in both a practical and a legal sense.[1]
Footnotes:
1.) 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 1116.
Today, because “the Militia of the several States” and “the right of the people to keep and bear Arms” have advanced from a statutory to a constitutional foundation, reliance on the free market for “arming * * * the Militia” and for securing “the right of the people to keep and bear Arms” is constitutionally mandatory, too, and therefore cannot be overridden by any mere statute.
During the pre-constitutional era, public officials’ disinclination, if not disability, to interfere with the free market in arms was a consequence of the duty of almost all of the members of the Militia to provide and thereafter permanently to possess their own firearms and ammunition. On its face, that was a statutory duty—although its origin, justification, and even compulsory nature can be traced to “the Laws of Nature and of Nature’s God”, and particularly to the responsibility of every government exercising “just powers” to provide adequate safeguards to “secure” to its citizens the “unalienable Rights” of “Life, Liberty and the pursuit of Happiness”[1]—which duty, in a self-governing community, the people themselves must fulfill through some form of Militia. Yet, even if noninterference by public officials with the operations of the free market for arms had not been deemed perforce of “the Laws of Nature and of Nature’s God” a truly “constitutional” principle during pre-constitutional times, it certainly was a statutory practice of very long standing and the utmost consistency, which became a constitutional principle when the original Constitution incorporated “the Militia of the several States” as integral and permanent parts of its federal structure,[2] and then the Second Amendment declared “[a] well regulated Militia * * * necessary to the security of a free State”. For inasmuch as the practical definition and operation of “Militia” during the pre-constitutional period included every able-bodied adult free man’s access to a free market in firearms and ammunition suitable for his Militia service—and, reciprocally, public officials’ disability to interfere with that access or that market—both became part and parcel of the definition of “Militia” in the Constitution.
On this basis, “[a] well regulated Militia” the Second Amendment contemplates is one the members of which can both first obtain and then maintain in readiness for immediate service all of their basic equipment through the free market. Therefore, “the right of the people to keep and bear Arms” includes not only the right of all of “the people” to acquire, possess, and employ “Arms”, but also the right of some of “the people” to design, manufacture, distribute, sell, and repair “Arms” for everyone else’s use. For how could “the people” have a “right * * * to keep and bear Arms” if they could not acquire them in the first instance by their own actions? How could “the people” acquire “Arms” that were not readily available to them? How could “Arms” be available to “the people” that were not produced for and distributed to them? And what purpose would it serve for “the people to keep and bear” unserviceable or outdated “Arms”?[3]
Footnotes:
1.) Declaration of Independence.
2.) U.S. Const. art. I, § 8, cls. 15 and 16, and art. II, § 2, cl. 1.
3.) 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 1117.
Every individual possibly eligible for service in “the Militia of the several States” must enjoy untrammeled access to a free market in which to obtain whatever firearms, ammunition, and accoutrements may to any degree prove useful for such service.[3]
Today, because “the Militia of the several States” and “the right of the people to keep and bear Arms” have advanced from a statutory to a constitutional foundation, reliance on the free market for “arming * * * the Militia” and for securing “the right of the people to keep and bear Arms” is constitutionally mandatory, too, and therefore cannot be overridden by any mere statute.[4]
1.) See Rhode Island v. Massachusetts, 37 U.S. (12 Peters) 657, 723 (1838).
2.) 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 1113.
3.) Id.
4.) Id., at page 1116.
