This material originally appeared on Kim Weissman's
Congress Action Newsletter
1982 Report of Committee on the Judiciary
was a common understanding throughout the history of our nation that
individual citizens always retained the right to keep and bear arms.
With every able-bodied citizen up to the age of fifty enrolled in the
militia, and required to supply their own arms, an issue arose during
debates over the First Militia Act regarding those people who were
unable to afford to buy their own arms, and proposals were made in the First
Congress, in 1790, for the government to
supply arms to those who could not afford to buy their own. But there
was no provision for these arms to be returned to the government after
use in militia training, because there was a fear that such a provision
would allow the government to supply arms for militia service only and
then remove them from the hands of large numbers of people, which the
members in Congress believed would never be tolerated by the people.
Those members also made clear that the purpose for an armed citizenry
was not only to repel foreign invasion, but also so that they would be
“prepared to resist tyranny and usurpation” – the tyranny of, and the
usurpation of power by, their own government.
In 1814 the Thirteenth Congress, during the administration of President James Madison, enacted another bill to more effectively organize and discipline the militias of the several States and continued the requirement that every able-bodied white male citizen be enrolled in the militia, and further, the requirement that each such citizen should arm himself when appearing for militia training. The bill went on to state that every citizen exempt from common militia training or exempt from militia duty generally, should also be required to arm himself. The Militia Act, in essence, mandated that virtually every citizen of the nation (except clergy) own a firearm.
A half century later in 1866, the Thirty-ninth Congress was concerned with the aftermath of the Civil War. If there was ever a time that could be used to justify restrictions on the private ownership of firearms, it would have been after a period during which a significant number of citizens in the nation had conducted open warfare against the national government, using, very often, privately owned firearms. The issues involved what would become the Civil Rights Act of 1866, and the Fourteenth Amendment to the United States Constitution. In February of 1866 the Senate debated extending military protection and jurisdiction over States or districts that had been in rebellion, and had as a consequence applied different laws to white persons than to any others because of race, color, or previous conditions of slavery. The civil rights to be extended to all citizens by that military jurisdiction included, despite the recent war, the right of bearing arms, and for the stated purpose, significantly, of self protection and the protection of private property (“security of person and estate”).
In May of 1866 the Senate debated adoption of the Fourteenth Amendment to the Constitution to protect the “privileges or immunities of citizens of the United States”. Senator Jacob M. Howard of Michigan explained exactly what those privileges or immunities of individual citizens were, to include those “personal rights guaranteed and secured by the first eight amendments”, including the right to keep and bear arms.
As recently as February, 1982, the United States Senate, Committee on the Judiciary, Subcommittee on the Constitution, of the Ninety-seventh Congress, Second Session, issued a massive report titled “The Right to Keep and Bear Arms”. The subcommittee examined history and legal precedent, and took evidence from interest groups across the political spectrum before concluding that the right to keep and bear arms was unquestionable a right belonging to individual citizens.
Debate On The Arming of The Militia
First Congress, Third Session
(Note on Historical Context: With debate on the First Militia Act requiring every able-bodied male citizen up to the age of fifty to be enrolled in the militia, and requiring every such person to supply their own arms, an issue arose regarding those people unable to afford to buy their own arms, and proposals were made for the government to supply arms to those who could not afford to buy their own.)
Mr. Parker observed, “the clause which enacts that every man in the United States shall ‘provide himself’ with military accoutrements would be found impracticable… [and] that provision should be made for arming such persons at the expense of the United States.”
Mr. Jackson said, “that he was of the opinion that the people of America would never consent to be deprived of the privilege of carrying arms.” “In a Republic every man ought to be a soldier, and prepared to resist tyranny and usurpation, as well as invasion…”.
Mr. Giles said, “He did not suppose that it was intended that the United States should make a present of the arms thus furnished – but the motion does not provide for their return when not in use.”
Mr. Vining observed, that “No provision is made for the return of the arms to the public.” “He then offered an addition to the motion, providing for the return of the arms to the commanding officer.”
Mr. Wadsworth, seeking clarification, observed that, “The motion at first appeared to be in favor of poor men, who are unable to purchase a firelock; but now it seems, minors and apprentices are to be provided for.”
Mr. Wadsworth then pointed out the great danger of providing large numbers of citizens with firearms and requiring that those arms be returned after use, which could become an excuse to disarm large numbers of citizens: “Is there a man in this House who would wish to see so large a proportion of the community, perhaps one-third, armed by the United States, and liable to be disarmed by them? Nothing would tend more to excite suspicion, and arouse jealousy dangerous to the Union.”
Debate on a Bill for Establishing a Uniform Militia
Congress, Third Session
(Note on Historical Context: The Treaty of Ghent formally ending the War of 1812 would be signed six weeks after this debate in the Senate. Although the war was essentially a stalemate, the exemplary service of the militia was noted by the nation, and steps were taken to better provide for the national defense in future conflicts by, among other steps directed at the army, more effectively organizing and disciplining the militia. President James Madison addressed Congress to that effect, saying,
“…I can not press too much on the attention of Congress such a classification and organization of the militia as will most effectually render it the safeguard of a free state. If experience has shown in the recent splendid achievements of militia the value of this resource for the public defense, it has shown also the importance of that skill in the use of arms and that familiarity with the essential rules of discipline which can not be expected from the regulations now in force. With this subject is intimately connected the necessity of accommodating the laws in every respect to the great object of enabling the political authority of the Union to employ promptly and effectually the physical power of the Union in the cases designated by the Constitution.”
The Congress thereupon enacted “An act more effectually to provide for the national defense by establishing a uniform militia throughout the United States”.)
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, in addition to the citizens directed to be enrolled by the first section of an act, entitled, ‘An act more effectually to provide for the national defense by establishing a uniform militia throughout the United States,’ each and every free able-bodied white male citizen of the United States and Territories thereof, who is or shall be between the ages of sixteen and eighteen years, shall severally and respectively be immediately enrolled in the militia…shall be holden to arm and equip himself…”. [emphasis added]
“Sec.2 And be it further enacted, That each and every free able-bodied white male citizen of the United States and Territories thereof, of the age of eighteen years, and under the age of forty-five years, who, by the laws of the United States, or any other State or Territory thereof, have been exempted from the common trainings for the purpose of discipline, or from militia duty generally, with every free able-bodied white male citizen of the age of forty-five years, and under the age of fifty years, except ministers of the gospel, shall be immediately enrolled in the militia…and, when so enrolled and notified according to law, such citizen shall be holden to arm and equip himself, and to do and perform all the duties, and be subject to all the penalties, in case of neglect, as are now, or shall hereafter be, provided for by law for the government of the militia of the United States, except that such citizen shall not be subject to attend the trainings of militia for discipline.” [emphasis added] – History of Congress, United States Senate, page 40-41.
Debate on the Proposal for the Bureau
Massachusetts' attorney Kim Weissman closed his website, Congress Action Newsletter, and has graciously selected TYSK as the repository for his very popular Second Amendment Information. Mr. Weissman and TYSK both hope that you will find what is contained here informative and enlightening and useful in refuting the claims, falsehoods, and distortions offered by those that want to restrict or eliminate the one pillar of the Bill of Rights which protects all others.
TYSK 2nd Amendment Department