Requirement of firearms possession

[Volokh, Eugene]

        I think that's right.  In the words of United States v. Miller, 307
U.S. 174 (1939), http://laws.findlaw.com/us/307/174.html, "The signification
attributed to the term Militia appears from the debates in the Convention,
the history and legislation of Colonies and States, and the writings of
approved commentators.  These show plainly enough that the Militia comprised
all males physically capable of acting in concert for the common defense.
'A body of citizens enrolled for military discipline.'  And further, that
ordinarily when called for service these men were expected to appear bearing
arms supplied by themselves and of the kind in common use at the time."
Thus, the power to provide for arming the militia would have been understood
as including the power to require people to own their arms.

        Incidentally, when I looked at Miller again (it's been a while since
I read it), I saw that it cites to several state statutes that required
firearms possession.  So again it seems that the state statutes, at least of
the immediately post-revolutionary era (and the Court also cites a
Massachusetts colonial-era statute), were no myth, or at least were one that
the Supreme Court has fallen for.

        Here's the quote from Miller:

                The General Court of Massachusetts, January Session 1784,
provided for the organization and government of the Militia.  It directed
that the Train Band should 'contain all able bodied men, from sixteen to
forty years of age, and the Alarm List, all other men under sixty years of
age, . . ..'  Also, 'That every non-commissioned officer and private soldier
of the said militia not under the controul of parents, masters or guardians,
and being of sufficient ability therefor in the judgment of the Selectmen of
the town in which he shall dwell, shall equip himself, and be constantly
provided with a good fire arm, &c.'

                By an Act passed April 4, 1786 (Laws 1786, c.  25), the New
York Legislature directed: 'That every able-bodied Male Person, being a
Citizen of this State, or of any of the United States, and residing in this
State, (except such Persons as are herein after excepted) and who are of the
Age of Sixteen, and under the Age of Forty-five Years, shall, by the Captain
or commanding Officer of the Beat in which such Citizens shall reside,
within four Months after the passing of this Act, be enrolled in the Company
of such Beat.  . . .  That every Citizen so enrolled and notified, shall,
within three Months thereafter, provide himself, at his own Expense, with a
good Musket or Firelock, a sufficient Bayonet and Belt, a Pouch with a Box
therein to contain not less than Twenty-four Cartridges suited to the Bore
of his Musket or Firelock, each Cartridge containing a proper Quantity of
Powder and Ball, two spare Flints, a Blanket and Knapsack; . . ..'

                The General Assembly of Virginia, October, 1785 (12 Hening's
Statutes c.  1, p.  9 et seq.), declared: . . .  'All free male persons
between the ages of eighteen and fifty years,' with certain exceptions,
'shall be inrolled or formed into companies.'  'There shall be a private
muster of every company once in two months.'  Also that 'Every officer and
soldier shall appear at his respective muster-field on the day appointed, by
eleven o'clock in the forenoon, armed, equipped, and accoutred, as follows:
. . .  every non-commissioned officer and private with a good, clean musket
carrying an ounce ball, and three feet eight inches long in the barrel, with
a good bayonet and iron ramrod well fitted thereto, a cartridge box properly
made, to contain and secure twenty cartridges fitted to his musket, a good
knapsack and canteen, and moreover, each non-commissioned officer and
private shall have at every muster one pound of good powder, and four pounds
of lead, including twenty blind cartridges; and each serjeant shall have a
pair of moulds fit to cast balls for their respective companies, to be
purchased by the commanding officer out of the monies arising on
delinquencies. . . .  And every of the said officers, non-commissioned
officers, and privates, shall constantly keep the aforesaid arms,
accoutrements, and ammunition, ready to be produced whenever called for by
his commanding officer.  If any private shall make it appear to the
satisfaction of the court hereafter to be appointed for trying delinquencies
under this act that he is so poor that he cannot purchase the arms herein
required, such court shall cause them to be purchased out of the money
arising from delinquents.'


> -----Original Message-----
> From: Bill Funk [SMTP:funk at LCLARK.EDU]
> Sent: Tuesday, August 22, 2000 3:22 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Requirement of firearms possession
>
> What was the constitutional authority for passing the Militia Act,
> requiring every able-bodied white man to own a gun?  Is this
> "provid[ing] for ... arming ... the militia"?
>
> Bill Funk
> Lewis & Clark Law School
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