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  The Virginia ratifying convention met from June 2 through June 26, 1788. On June 5, Edmund Pendleton, president of the convention and opponent of a bill of rights, weakly argued that abuse of power could be remedied by recalling the delegated powers in a convention.14 Patrick Henry shot back that the power to resist oppression rests upon the right to possess arms:

  Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined.15

  Henry sneered, “O sir, we should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people! Your arms, wherewith you could defend yourselves, are gone. . . . Did you ever read of any revolution in a nation . . . inflicted by those who had no power at all?”16

  Since the Constitution had not been tested by experience, Henry’s arguments cannot be considered mere exaggerations. He queried,“of what service would militia be to you, when, most probably, you will not have a single musket in the state? for, as arms are to be provided by Congress, they may or may not furnish them.”17 Quoting the militia clause of the Constitution, Henry continued: “By this, sir, you see that their control over our last and best de­fence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither—this power being exclusively given to Congress.”18

  The next day, June 6, Edmund Randolph—who had joined Mason and Gerry in refusing to sign the proposed Constitution as delegates at the Philadelphia convention but who now had switched sides—made the following comments about defense:

  The other States have upwards of 330,000 men capable of bearing arms: This will be a good army, or they can very easily raise a good army out of so great a number. Our militia mounts to 50,000; even stretching it to the improbable amount (urged by some) of 60,000. . . . I will pay the last tribute of gratitude to the militia of my country: They performed some of the most gallant feats during the last war, and acted as nobly as men enured to other avocations could be expected to do: But, Sir, it is dangerous to look to them as our sole protectors.19

  James Madison also responded that the militia provision was“an additional security to our liberty, without diminishing the power of states in any considerable degree. . . . Congress ought to have the power to establish a uniform discipline throughout the states, and to provide for the execution of the laws, suppress insurrections, and repeal invasions: these are the only cases wherein they can interfere with the militia. . . .”20

  In response to a suggestion that the militia would be made into an instrument of tyranny, on June 7 Frances Corbin asked: “Are we not militia? Shall we fight against ourselves?”21

  But Patrick Henry relentlessly returned to the theme of a declaration of rights. On the same day, he noted “certain political maxims, which no free people ought ever to abandon”:

  We have one, Sir, That all men are by nature free and independent, and have certain inherent rights, of which, when they enter into society, they cannot by any compact deprive or divest their posterity. We have a set of maxims of the same spirit, which must be beloved by every friend to liberty, to virtue, to mankind. Our Bill of Rights contains those admirable maxims.22

  Henry wished not to leave rights such as jury trial and a free press to chance, which the doctrine of implied rights entailed: “If they can use implication for us, they can also use implications against us. We are giving power, they are getting power, judge then, on which side the implication will be used.”23 A bill of rights was conceived when the Revolution began precisely to exclude construction and implication.24

  Before the convention began, George Mason working with the Virginia antifederalists had already drafted a declaration of rights, which the convention would later adopt nearly verbatim. On June 9, just after the convention opened, Patrick Henry wrote to John Lamb, chairman of the Federal Republican Committee of New York, that “Colo. George Mason has agreed to act as Chairman of our republican Society” and that they were sending a copy of “the Bill of Rights & of the particular Amendments we intend to propose in our Convention.”25 Mason wrote Lamb on the same date, enclosing a copy of the proposals.

  The proposals were divided into two parts. The first was “a Declaration or Bill of Rights, asserting and securing from Encroachment, the Essential and unalienable Rights of the People.”26 It was an expanded version of the Virginia Declaration of Rights of 1776, which Mason also penned. It contained three successive provisions beginning with identical terms: first, “That the People have a Right peaceably to assemble. . .”; second, “That the People have a Right to Freedom of Speech . . .”; and third, “That the People have a Right to keep and to 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. . . .”27

  According to one source, there is a draft in Mason’s handwriting with the terminology: “That the people have a Right to mass & to bear arms. . . .”28 It is uncertain whether this was a correct transcription. If correct, perhaps a right to “mass” with arms and bear them recalled the Revolutionary days when the armed multitudes would descend upon British colonial officials. This term would be dropped for the more conservative term “keep,” which connotes the quiet possession of arms in the home.

  The second part of the proposals consisted of amendments to the structure of the proposed government. It began: “That each State in the Union shall retain its Sovereignty, Freedom and Independence, and every Power, Jurisdiction and Right which is not by this Constitution expressly delegated to the Congress of the United States.”29 Among other provisions, it proposed that two-thirds of both houses of Congress would be necessary to keep up a standing army.30 It did not mention the militia. These issues would be revisited throughout the debates and particularly at the conclusion of the convention.

  In convention debate on June 9, Patrick Henry objected to the power of Congress to erect forts and magazines in each state,31 arguing:

  Are we at last brought to such an humiliating and debasing degradation, that we cannot be trusted with arms for our own defence? Where is the difference between having our arms in our own possession and under our own direction, and having them under the management of Congress. If our defence be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?32

  Similarly, Henry reiterated objections to the clause providing that Congress would arm and discipline the militia, reserving to the states the appointment of officers. If Congress failed to discipline the militia, would the states be precluded from doing so? The states could act only through “the doctrine of constructive implied powers.” Henry added: “If by implication the States may discipline them, by implication also, Congress may officer them. . . .” The quandary was not just logical but was practical: “We have not one fourth of the arms that would be sufficient to defend ourselves. The power of arming the militia, and the means of purchasing arms, are taken from the states by the paramount power of Congress. If Congress will not arm them, they will not be armed at all.” Henry concluded: “Congress by the power of taxation—by that of raising an army, and by their controul over the militia, have the sword in one hand, and the purse in the other. Shall we be safe without either?“33 Henry also asserted of the states that “you are not to have the right of having arms in your own defence. . . .”34

  In response to Patrick Henry’s argument “that militia alone ought to be depended upon for the defence of every free country,” Henry Lee—lieutenant colonel commandant of the American partisan legion in the Revolution35—averred: “I have seen them [the militia] perform feats that would do honour to the first veterans, and submitting to what would daunt German soldiers.” However,“the militia cannot always be relied upon.” Moreover, Congress’ power was not exclusive: “The states are, by no part of the plan before you, precluded from arm
ing and disciplining the militia, should Congress neglect it.”36

  Edmund Randolph returned to the theme of the danger of a bill of rights in a limited government, noting that Virginia’s declaration was not part of its constitution, leaving a question about which was paramount. The same dispute would arise with a federal bill of rights: “Some [judges] will say, the bill of rights is paramount:—Others will say, that the Constitution being subsequent in point of time, must be paramount.”37

  Similarly, George Nicholas averred: “It is a principle universally agreed upon, that all powers not given, are retained.” He would depend on the legislature to protect rights as done in England:

  They have no express security for the liberty of the press. They have a reliance on Parliament of its protection and security. In the time of King William, there passed an act for licencing the press. That was repealed. The people have depended on their representatives. They will not consent to an act to infringe it. . . .38

  Edmund Randolph, in debate on June 10, denied that the federal power was exclusive of the states. “Should Congress neglect to arm or discipline the militia, the states are fully possessed of the power of doing it; for they are restrained from it by no part of the Constitution.”39 A penman “Denatus” published an address to the convention the next day advocating academies for citizens to learn military arts and militia exercises. After training, they would “return home, prepare our arms for a moments warning, and each man fall to his occupation as before.”40

  But under the Constitution, argued George Mason on June 14, the militia would be destroyed “by rendering them useless—by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them. . . .”41 A standing army would be supreme: “When, against a regular and disciplined army, yeomanry are the only defence,—yeomanry, unskillful and unarmed,—what chance is there for preserving freedom?”42 Mason recalled:

  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. [Here Mr. Mason quoted sundry passages to this effect.] This was a most iniquitous project. Why should we not provide against the danger of having our militia, our real and natural strength, destroyed? The general government ought, at the same time, to have some such power. 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. . . . I wish that, in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the state governments might arm and discipline them.43

  Mason undoubtedly quoted from Sir William Keith’s Collection of Papers and Other Tracts published in London in 1740. Colonial Pennsylvania Governor Keith violated every tenet of the Whig-republican philosophy that so influenced the Americans with the following words:

  A Militia in an arbitrary and tyrannical Government may possibly be of some Service to the governing Power; but we learn from Experience, that in a free Country it is of little use. The People in the Plantations are so few in Proportion to the Lands they Possess, that Servants being scarce, and Slaves so exceedingly dear, the men are generally under a Necessity to work hard themselves, in order to provide the common Necessaries of Life for their Families; so that they cannot spare a Day’s Time without great Loss to their Interest; wherefore a Militia there would become more burdensome to the poor People, than it can be in any Part of Europe. Besides, it may be question’d how far it would be consistent with good Policy, to accustom all the able Men in the Colonies to be well exercised in Arms; it seems at present to be more advisable, to keep up a small regular Force in each Province, which on Occasion might be readily augmented; so that in Case of a War, or Rebellion, the whole of the regular Troops on the Continent, might without Loss of Time be united or distributed at Pleasure. . . .44

  Keith’s fear of “accustom [ing] all the able Men in the Colonies to be well exercised in Arms” was directly related to his fear of“rebellion.” He was the apologist of colonial imperialism par excellence, holding that“Every Act of a dependant Provincial Government therefore ought to terminate in the Advantage of the Mother State”45 and that none of the colonies “can with any Reason or good Sense pretend to claim an absolute legislative Power within themselves. . . .”46

  In a 1767 publication Keith advocated resort to the stamp tax in order to support a “Body of Regular Troops” under the control of the Crown and independent of the colonial governors47 As if this addition of insult to injury was not enough, he referred to the “loose, disorderly, and insignificant Militia.”48

  James Madison countered Mason’s arguments and quotations from Keith with the assertion that the federal and state governments were “coequal sovereignties,” adding: “I cannot conceive that this Constitution, by giving the general government the power of the arming the militia, takes it away from the state governments. The power is concurrent, not exclusive.”49

  Patrick Henry retorted in a single argument asserting both the individual right to have arms and the state power to encourage a militia consisting of the armed populace:

  May we not discipline and arm them, as well as Congress, if the power be concurrent? So that our militia shall have two sets of arms, double sets of regimentals, & c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms, & c.? Every one who is able may have a gun. But we have learned, by experience, that, necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavoured to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, rill the stares shall have refused or neglected to do it?50

  Henry thus recognized that the objective “that every man be armed” presupposed the right to have arms, in that “every one who is able may have a gun.” However, state legislation had not achieved a“militia completely armed,” a situation which would be exacerbated if the federal government required different arms, given that the people could not afford two sets.

  Again the federalists countered, with George Nicholas articulating more precisely why the militia power was not exclusive:

  But it is said, the militia are to be disarmed. Will they be worse armed than they are now? Still, as my honourable friend said, the states would have power to arm them. The power of arming them is concurrent between the general and state governments; for the power of arming them rested in the state governments before; and although the power be given to the general government, yet it is not given exclusively. . . . It is, therefore, nor an absurdity to say, that Virginia may arm the militia, should Congress neglect to arm them after Congress had armed them, when it would be unnecessary. . . .51

  In debate on June 16, William Grayson reasserted the exclusive-power interpretation, warning that the militia “might be armed in one part of the Union, and totally neglected in another.” He pointed out that England had an excellent militia law for itself, entailing “thirty thousand select militia,” but neglected the militia of Scotland and Ireland.52

  John Marshall explained why powers not exclusively delegated are retained, as was illustrated by the provision that “no state shall engage in war” unless invaded.53 He worried that some states would regulate their militia
s but others would neglect them, averring: “If Congress neglect our militia we can arm them ourselves. Cannot Virginia import arms? Cannot she put them into hands of her militia-men?” Nothing in the Constitution divested the states of their preexisting militia power.54

  George Mason returned to the issue of “Who are the militia? They consist of now of the whole people, except a few public officers. . . . 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. . . .”55 The republican militia was the armed populace at large, not a select militia or standing army.

  In response, George Nicholas detected a contradiction in the antifederalists, in that Grayson objected because there would be no select militia, while Mason objected that there would be. Grayson had referred to Britain’s select militia, which was “more thoroughly exercised than the militia at large,” but Mason worried about “the exemption of the highest classes of the people from militia services. . . .”56 Grayson agreed that “a well-regulated militia ought to be the defence of this country.”57

  In the last word on the state militia power, Edmund Pendleton noted that “though Congress may provide for arming them, . . . there is nothing to preclude [the states] from arming and disciplining them, should Congress neglect to do it.”58 Regarding Congress’ power to protect the states from domestic violence,59 he added: “The state is in full possession of the power of using its own militia to protect itself against domestic violence; and the power in the general government cannot be exercised, or interposed, without the application of the state itself.”60

  On June 23, the clause-by-clause debates over the Constitution ended. In a letter to his brother Ambrose, James Madison anticipated that advocacy of previous amendments would be countered by “a conciliatory declaration of certain fundamental principles in favour of liberty, in a form not affecting the validity & plenitude of the ratification. . . . The final question is likely to be decided by a very small majority.”61