Myths and Misquotes: Joseph Story
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Myths and Misquotes: Joseph Story |
                
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Story, Joseph (Commentaries on the Constitution of the United States, 1833)
The Claim This one started with Stanford Levinson, in "The Embarrassing Second Amendment" (99 Yale L.J. 637-659 [1989]):
. Levinson, at least, gives passing note to the context -- the militia. But more disingenuous advocates drop that militia context, entirely. Stephen Halbrook, in "The Right to Keep and Bear Arms under the Second and Fourteenth Amendments: The Framers' Intent and Supreme Court Jurisprudence" (5 J. on Firearms & Pub. Pol'y 7-28 [1993]):
In fact, Miller makes reference specifically on Story's section on the militia clauses of Art I (see below), contained in volume 2 of Story's commentary, while Halbrook's out of context squib is from Story's commentary on the Second Amendment, in volume 3. But Halbrook, possibly on the premise that if he repeats it enough, it must be true, is actually "redealing from the same deck" what he had written earlier in "The Right of the People or the Power of the State: Bearing Arms, Arming Militias and the Second Amendment" (26 Val. U. L. Rev. 131-207 [1991]). Then there is Don Kates, in "Handgun Prohibition and the Original Meaning of the Second Amendment" (82 Mich. L. Rev. 204-273 [1983]):
The Reality Story's entire commentary on the Second Amendment (Justice Story's footnotes have been omitted):
§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. 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. And yet, though this truth would seem so clear, and 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 burthens, 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 this clause of our national bill of rights. § 1891. A similar provision in favour of protestants (for to them it is confined) is to be found in the bill of rights of 1688, it being declared, "that the subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law." But under various pretences the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege. In context, it becomes clear that Story is referring to an organized and trained organization of citizen soldiers, including a "system of militia discipline" and "regulations", complete with the "its burthens" -- a far different proposition from the gun lobby's "individual right" twist. AS to the nature of that militia, here is Story discussing Art I, Section VIII, paras 15 and 16 of the Constitution:
§ 1195. This clause seems, after a slight amendment, to have passed the convention without opposition. It cured a defect severely felt under the confederation, which contained no provision on the subject. § 1196. The power of regulating the militia, and of commanding its services to enforce the laws, and to suppress insurrections, and repel invasions, is a natural incident to the duty of superintending the common defence, and preserving the internal peace of the nation. In short, every argument, which is urged, or can be urged against standing armies in time of peace, applies forcibly to the propriety of vesting this power in the national government. There is but one of two alternatives, which can be resorted to in cases of insurrection, invasion, or violent opposition to the laws; either to employ regular troops, or to employ the militia to suppress them. In ordinary cases, indeed, the resistance to the laws may be put down by the posse comitatus, or the assistance of the common magistracy. But cases may occur, in which such a resort would be utterly vain, and even mischievous; since it might encourage the factious to more rash measures, and prevent the application of a force, which would at once destroy the hopes, and crush the efforts of the disaffected. The general power of the government to pass all laws necessary and proper to execute its declared powers, would doubtless authorize laws to call forth the posse comitatus, and employ the common magistracy, in cases, where such measures would suit the emergency. But if the militia could not be called in aid, it would be absolutely indispensable to the common safety to keep up a strong regular force in time of peace. The latter would certainly not be desirable, or economical; and therefore this power over the militia is highly salutary to the public repose, and at the same time an additional security to the public liberty. In times of insurrection or invasion, it would be natural and proper, that the militia of a neighbouring state should be marched into another to resist a common enemy, or guard the republic against the violence of a domestic faction or sedition. But it is scarcely possible, that in the exercise of the power the militia should ever be called to march great distances, since it would be at once the most expensive and the most inconvenient force, which the government could employ for distant expeditions. The regulation of the whole subject is always to be in the power of congress; and it may from time to time be moulded so, as to escape from all dangerous abuses. § 1197. Notwithstanding the reasonableness of these suggestions, the power was made the subject of the most warm appeals to the people, to alarm their fears, and surprise their judgment. At one time it was said, that the militia under the command of the national government might be dangerous to the public liberty; at another, that they might be ordered to the most distant places, and burthened with the most oppressive services; and at another, that the states might thus be robbed of their immediate means of defence. How these things could be accomplished with the consent of both houses of congress, in which the states and the people of the states are represented, it is difficult to conceive. But the highly coloured and impassioned addresses, used on this occasion, produced some propositions of amendment in the state conventions, which, however, were never duly ratified, and have long since ceased to be felt, as matters of general concern. § 1198. The next power of congress is, "to provide for organizing, arming, and disciplining the militia, and for governing such part of them, as may be employed in the service of the United States; reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress." § 1199. This power has a natural connexion with the preceding, and, if not indispensable to its exercise, furnishes the only adequate means of giving it promptitude and efficiency in its operations. It requires no skill in the science of war to discern, that uniformity in the organization and discipline of the militia will be attended with the most beneficial effects, whenever they are called into active service. It will enable them to discharge the duties of the camp and field with mutual intelligence and concert, an advantage of peculiar moment in the operations of an army; and it will enable them to acquire, in a much shorter period, that degree of proficiency in military functions, which is essential to their usefulness. Such an uniformity, it is evident, can be attained only through the superintending power of the national government. § 1200. This clause was not in the original draft of the constitution; but it was subsequently referred to a committee, who reported in favour of the power; and after considerable discussion it was adopted in its present shape by a decided majority. The first clause in regard to organizing, arming, disciplining, and governing the militia, was passed by a vote of nine states against two; the next, referring the appointment of officers to the states, after an ineffectual effort to amend it by confining the appointment to officers under the rank of general officers, was passed without a division; and the last, referring the authority to train the militia according to the discipline prescribed by congress, was passed by a vote of seven states against four. § 1201. It was conceived by the friends of the constitution, that the power thus given, with the guards, reserving the appointment of the officers, and the training of the militia to the states, made it not only wholly unexceptionable, but in reality an additional security to the public liberties. It was nevertheless made a topic of serious alarm and powerful objection. It was suggested, that it was indispensable to the states, that they should possess the control and discipline of the militia. Congress might, under pretence of organizing and disciplining them, inflict severe and ignominious punishments on them. The power might be construed to be exclusive in congress. Suppose, then, that congress should refuse to provide for arming or organizing them, the result would be, that the states would be utterly without the means of defence, and prostrate at the feet of the national government. It might also be said, that congress possessed the exclusive power to suppress insurrections, and repel invasions, which would take from the states all effective means of resistance. The militia might be put under martial law, when not under duty in the public service. § 1202. It is difficult fully to comprehend the influence of such objections, urged with much apparent sincerity and earnestness at such an eventful period. The answers then given seem to have been in their structure and reasoning satisfactory and conclusive. But the amendments proposed to the constitution (some of which have been since adopted) show, that the objections were extensively felt, and sedulously cherished. The power of congress over the militia (it was urged) was limited, and concurrent with that of the states. The right of governing them was confined to the single case of their being in the actual service of the United States, in some of the cases pointed out in the constitution. It was then, and then only, that they could be subjected by the general government to martial law. If congress did not choose to arm, organize, or discipline the militia, there would be an inherent right in the states to do it. All, that the constitution intended, was, to give a power to congress to ensure uniformity, and thereby efficiency. But, if congress refused, or neglected to perform the duty, the states had a perfect concurrent right, and might act upon it to the utmost extent of sovereignty. As little pretence was there to say, that congress possessed the exclusive power to suppress insurrections and repel invasions. Their power was merely competent to reach these objects; but did not, and could not, in regard to the militia, supersede the ordinary rights of the states. It was, indeed, made a duty of congress to provide for such cases; but this did not exclude the co-operation of the states. The idea of congress inflicting severe and ignominious punishments upon the militia in times of peace was absurd. It presupposed, that the representatives had an interest, and would intentionally take measures to oppress them, and alienate their affections. The appointment of the officers of the militia was exclusively in the states; and how could it be presumed, that such men would ever consent to the destruction of the rights or privileges of their fellow-citizens. The power to discipline and train the militia, except when in the actual service of the United States, was also exclusively vested in the states; and under such circumstances, it was secure against any serious abuses. It was added, that any project of disciplining the whole militia of the United States would be so utterly impracticable and mischievous, that it would probably never be attempted. The most, that could be done, would be to organize and discipline select corps; and these for all general purposes, either of the states, or of the Union, would be found to combine all, that was useful or desirable in militia services.
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