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All George Mason, All the Time:

As the George Mason Patriots prepare for the Final Four, and loyal V.C. readers everywhere hope for the ultimate National Championship match-up of George Mason vs. UCLA, I thought that now would be a good time to note some of George Mason's contributions to the right to keep and bear arms.

On September 21, 1774, George Mason and George Washington co-founded the Fairfax County Militia Association, which Mason chaired. When Washington attended the May 1775 meeting of the Continental Congress, he wore the blue and buff uniform of the Fairfax County Militia; Congress appointed him General of the Continental Army and the blue and buff later became the colors of the Continental Army.

In January 1775, the Fairfax County Militia issued Mason's Fairfax County Militia Plan:

A well-regulated militia, composed of the Gentlemen, Freeholders, and other Freemen was necessary to protect our ancient laws and liberty from the standing army...and we do each of us, for ourselves respectively, promise and engage to keep a good Fire-lock in proper Order & to furnish Ourselves as soon as possible with, & always keep by us, one Pound of Gunpowder four Pounds of Lead, one Dozen Gun Flints, and a pair of Bullet Moulds, with a Cartouch box, or powder horn, and Bag for Balls.

1 George Mason, Papers 210-11 (1970), quoted in Stephen P. Halbrook, That Every Man Be Armed: The Evolution of the Constitutional Right 60 (1984).

Mason authored the Virginia Declaration of Rights (June 2, 1776), which stated in article 13:

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.

Mason wrote the Richmond Antifederal Committee's June 11, 1788, proposal for Bill of Rights to be added to the United States Constitution. The 17th item stated:

That the People have a Right to keep & bear Arms; that a well regulated Militia, composed of the Body of the People, trained to Arms, is the proper natural and safe Defence of a free State; that standing Armys in time of Peace are dangerous to Liberty, and therefore ought to be avoided, as far the Circumstances and Protection of the Community will admit; and that in all Cases, the Military ought shou'd be under strict Subordination to and be govern'd by the Civil Power.

As the Virginia ratifying convention, Mason pointed out:

Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man [Sir William Keith], who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia.

He also warned the convention (June 14, 1788):

The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless--by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia.... But we need not give them power to abolish our militia. If they neglect to arm them, and prescribe proper discipline, they will be of no use.

Like many anti-federalists, Mason worried that the present militia, composed of the entire people, might one day be replaced by a much narrower militia:

Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c., by our representation? I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government, all ranks of people are subject to militia duty. Under such a full and equal representation as ours, there can be no ignominious punishment inflicted. But under this national, or rather consolidated government, the case will be different. The representation being so small and inadequate, they will have no fellow-feeling for the people. They may discriminate people in their own predicament, and exempt from duty all the officers and lowest creatures of the national government. If there were a more particular definition of their powers, and a clause exempting the militia from martial law except when in actual service, and from fines and punishments of an unusual nature, then we might expect that the militia would be what they are. [Note: the final two concerns were partially addressed by the Fifth Amendment, which requires Grand Jury indictments before prosecutions for serious crimes, except "in the Militia, when in actual service in time of War or public danger" and by the Eighth Amendment, which forbids "cruel and unusual" punishments for anyone, including people in active militia service.] But, if this be not the case, we cannot say how long all classes of people will be included in the militia. There will not be the same reason to expect it, because the government will be administered by different people. We know what they are now, but know not how soon they may be altered.

Some persons argue that because Mason was so concerned about the militia, and because he was so influential in creating the pressure that led Madison to draft the Second Amendment (and the rest of the Bill of Rights), that the Second Amendment only protects militia rights (and, somehow, the militia rights have now dwindled into only the rights of members of the National Guard while on active duty). Such an interpretation, however, is not consistent with Mason's proposed Richmond bill of rights, which first states "That the People have a Right to keep & bear Arms" and only thereafter adds other items dealing with the militia and with standing armies.

Some George Mason University publications involving the Second Amendment and related issues: Stephen P. Halbrook, The Jurisprudence of the Second and Fourteenth Amendments, 4 Geo. Mason U. L. Rev. 1 (1981); Stephen P. Halbrook, Second-Class Citizenship and the Second Amendment in the District of Columbia, 5 Geo. Mason U. Civ. Rts. L.J. 105 (1995); David B. Kopel, The Brady Bill Comes Due: The Printz Case and State Autonomy, George Mason University Civil Rights Law J.; Stefan B. Tahmassebi, Gun Control and Racism, 2 Geo. Mason U. Civ. Rts. L.J. 67 (1991).

Some notable George Mason Univeristy professors who have written about the Second Amendment: Stephen P. Halbrook (Asst. Prof. Philosophy, 1980-81); Walter Williams (Economics); Nelson Lund (Law), Patrick Henry Professor of Constitutional Law and the Second Amendment; Daniel Polsby (Dean, Law).

Appellate Attorney:
Very interesting post. Thank you.
4.1.2006 9:28am
Stan Morris (mail):
Has Our Leader has spoken on the basketball issue mentioned in the first paragraph?
4.1.2006 11:24am
frankcross (mail):
I'm guessing that if they come out onto the court armed this evening (not concealed) that will give them a substantial psychological edge in the game.
4.1.2006 11:44am
submandave (mail) (www):
The opening passage from the proposed Richmond bill of rights in only the first indication that the "Second Amendment applies only to militia" advocates are engaging in projection rather than analysis. Mason repeatedly stressed the importance of universality in the composition of the militia. This, in fact, is still reflected by law today in 10CFR311, which defines the militia of the United States, in part, as "consists of all able-bodied males at least 17 years of age and ... under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States" (emphasis added).

So the next time someone tries to haul out that "only the militia" tripe you can calmly point out that if that is the case then we should be issuing firearms to half the High School Seniors.
4.1.2006 1:26pm
Porkchop (mail):
submandave wrote:


This, in fact, is still reflected by law today in 10CFR311, which defines the militia of the United States, in part, as "consists of all able-bodied males at least 17 years of age and ... under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States" (emphasis added).


I'm too old for the militia. Does that mean the Second Amendment no longer applies to me? :-0 BTW, I do belong to the cold, dead fingers school of gun ownership.
4.1.2006 3:22pm
R:
I've just been sold into wanting a final match-up of UCLA and George Mason.

It should also be noted that "Joe", the famous bruin who stalked the greater Los Angeles area in the early 1900s, after whom the UCLA team is named, was also a staunch gun rights advocate. Whenever they'd find one of his victims they'd also find, written in blood nearby, the words, "you should have packed a gun, buddy."

He was more politically motivated than your average bear, and ultimately sacrificed his life for his beliefs when one of his would be victims finally heeded his advice.
4.1.2006 4:13pm
Dave Hardy (mail) (www):
Much the debate over the second amendment assumes that it can only have one meaning, one purpose. But it has two clauses, and served two constituencies (albeit overlapping and related ones. The difference being more one of emphasis).

Classicial republicans and states dominated by them (the simplest test for that being whether the vote was limited to landowners) tended to favor "militia is important" clauses, seeing it as an institution. Virginia 1776, Maryland.

Persons and groups dominated by the emerging Jeffersonianism (simple test: franchise open to all taxpayers, etc.) tended to favor individual right to arms clauses. PA 1776, KY, etc.

Up to 1788, every drafting body did one or the other.

But when VA's ratifying convention sat down they realized it really wasn't an either-or choice. Why not do both, and satisfy everyone?
4.1.2006 4:38pm
Gordo:

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state;

I think I've finally figured out the real meaning of the 2nd amendment. Anyone in "the well-regulated militia" that is "trained in arms" is allowed to own a firearm. And this is "the body of the people," which in this enlightened day means both men and women.

So I would suggest that anyone who is in the National Guard is allowed to own a gun, whether on duty or not. And everyone should be required to be in the National Guard.

"Well-trained" means mandatory gun training, by the way, all you 2nd amendment absolutists.

And are you all ready to validate your rights to own a gun by joining the National Guard?
4.1.2006 9:32pm
Lev:
Under federal statute, 10 USC 311, the US militia comprises two parts:

1. the organized militia or national guard

and

2. the unorganized militia.

One need not join the national guard to be part of the militia.

------------------------

Too bad about Geo Mason.
4.1.2006 11:44pm
Sebastian (mail):
"Well-trained" means mandatory gun training, by the way, all you 2nd amendment absolutists.

And are you all ready to validate your rights to own a gun by joining the National Guard?


I've always pondered whether Congress could institute mandatory gun training using its militia powers, and I think the answer is that it could.

As a gun owner, I'd be willing to accept this state of affairs, but not as a precondition for owning a firearm. My right to keep and bear arms is not contingent upon my being a member of the National Guard, but if my state or the United States wishes to call me into service it is certainly within their power to do so.
4.2.2006 4:30am
Pocahontas (mail):
Another argument can be made for why the 2nd amendment only applies to militia members. The phrase "to keep and bear arms" was a military phrase - and the founding generation intended and used it as such.

For articles, do a westlaw/lexisnexis search on "Saul Cornell" for more.

The National Guard is not a militia IMO b/c the federal gov't has too much control over it. But, under the constitution, the States can bring back militias if they wanted to - to check the power of the federal gov't.
4.2.2006 12:51pm
Tryptich:
Why do we constantly have this tug-of-war about the 'militia' of the United States, especially the assinine argument that the militia is only the national guard? Let us look no further than our own United States Code, 10 U.S.C. sec 311, which states:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Thus, as a male, United States citizen of 38 years of age, I am a member of the militia. I own a shotgun and know how to clean, load and fire it. I don't have to join the National Guard, Gordo. In fact, neither do you ... if you're a citizen under the age of 45, we're both in the militia? How do you like them apples?

Now if you want to tell me that the militia can only legally be restricted to men or to those under the age of 45 then you haven't been paying close attention to the development of constitutional law over the last 100 years. A good argument is that the militia (unorganized)is constitutionally comprised of all United States citizens who have reached their majority).

Or you can restrict it to just men ... it wouldn't hurt my feelings. But the law is the law, and the law says the militia isn't just the national guard. So all the liberal hyperventilating on this issue is remarkably futile, but then what's new about that?
4.2.2006 4:55pm
juris_imprudent (mail):

The phrase "to keep and bear arms" was a military phrase - and the founding generation intended and used it as such.

Actually, that's not quite correct. The "keep" part is outside the context of "bearing arms", which indeed was keyed to military/militia service.

You also need to keep in mind, that the founding generation expected men to arrive for militia service, bearing their own arms. The dependency is really pretty clear and easy - a generally armed populace is the basis for an effective militia.
4.3.2006 12:01am
Tyrone Slothrop (mail) (www):
Some persons argue that because Mason was so concerned about the militia, and because he was so influential in creating the pressure that led Madison to draft the Second Amendment (and the rest of the Bill of Rights), that the Second Amendment only protects militia rights (and, somehow, the militia rights have now dwindled into only the rights of members of the National Guard while on active duty). Such an interpretation, however, is not consistent with Mason's proposed Richmond bill of rights, which first states "That the People have a Right to keep &bear Arms" and only thereafter adds other items dealing with the militia and with standing armies.

Along the lines of what Dave Hardy said above, this ("such an interpretation . . . is not consistent") is true only if you assume that Mason used different words to express the same thing.

And to the other posters above who are relying on federal statute to explain what the term "militia" means -- that's not (necessarily) how it works.
4.3.2006 12:24pm
Gordo:
I am astonished that David Kopel is trumpeting these words from George Mason, because they put a lie to all the yammering from 2nd amendment absolutists like Tryptich above, who hhas the chutzpah to accuse ME of liberal hyperventilating!

Look at the words of the Virginia Declaration of Rights, itself:
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state;

The militia may indeed be the whole people, but it is "well-regulated" and "trained to arms." The purpose of the militia was to provide an alternative to a professional standing army.

If George Mason or any of the other Founding Fathers were alive today, I have no doubt they would want to set up a "national guard"-type militia of persons who could be called to military service when necessary, and would provide arms and the training to use them for that purpose.

And then they would be accused of "liberal hyperventilating" by the likes of Tryptich.
4.3.2006 12:49pm
Gordo:

Some persons argue that because Mason was so concerned about the militia, and because he was so influential in creating the pressure that led Madison to draft the Second Amendment (and the rest of the Bill of Rights), that the Second Amendment only protects militia rights (and, somehow, the militia rights have now dwindled into only the rights of members of the National Guard while on active duty).

Reading Mason's words, it is crystal clear that he wanted to protect militia rights through the right to bear arms. Mr. Kopel's parenthetical statement is a way to avoid the Mason problem by using the logic of hard-left gun opponents. What is the response to the possibility that the 2nd amendment was meant to preserve militia rights only, but that the militia should consist of anyone in the National Guard, whether on active duty or not, and that the National Guard should include (that is conscript) every able-bodied male (and now female) in the nation?
4.3.2006 12:53pm
Tyrone Slothrop (mail) (www):
Reading Mason's words, it is crystal clear that he wanted to protect militia rights through the right to bear arms. Mr. Kopel's parenthetical statement is a way to avoid the Mason problem by using the logic of hard-left gun opponents. What is the response to the possibility that the 2nd amendment was meant to preserve militia rights only, but that the militia should consist of anyone in the National Guard, whether on active duty or not, and that the National Guard should include (that is conscript) every able-bodied male (and now female) in the nation?

Another way to put this idea, I think, is that everyone has a right to bear arms, but that the scope of the right to bear arms is defined by a nexus with militia service -- i.e., actual service in an actual militia. Since colonial militias actually did muster and train, this strikes me as more faithful to the framers' conception of the militia than the idea that the word is just another way to refer to the public at large.

Then you have the question of whether the government can undermine this right by moving to a smaller, more professional militia, something more akin to the National Guard. That would seem to be a hard question, and I'm not sure how it should come out.
4.3.2006 3:10pm
Jam (mail):
G. Mason is ahero of mine.


That the People have a Right to keep &bear Arms; that a well regulated Militia, composed of the Body of the People, trained to Arms, is the proper natural and safe Defence of a free State; that standing Armys in time of Peace are dangerous to Liberty, and therefore ought to be avoided, as far the Circumstances and Protection of the Community will admit; and that in all Cases, the Military ought shou'd be under strict Subordination to and be govern'd by the Civil Power.


"well regulated" - it is my understanding that it simply means "working properly," the way it is supposed to work.

Where is the regulation of firearms in here? The whole assumption is that the people already are free to have arms and of right. The rest are clauses separate from the first.

PS: I do not care about sports but I sure felt sad when GM lost.
4.4.2006 10:03pm