Every able-bodied man must own a musket, the Militia Act of 1792 and its heirs

Imagine a federal law today that said every adult man in your county must buy a rifle, twenty-odd rounds of ammunition, a pouch and a knapsack within six months, at his own expense, and report with them when called. The coverage would be wall to wall. There would be a congressional hearing, a panel of experts, and a chyron with the word mandate on it. Half the country would call it a gun-grab in reverse, and the other half would ask who was going to pay for the knapsacks.

Yet that is an accurate description of a law Congress passed in 1792, signed by George Washington, and supported by the men who had written the Second Amendment the year before. It is hard to find a better single document for understanding what the founders assumed about an armed population.

What the Uniform Militia Act said

Congress passed "An Act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States" on May 8, 1792. It is commonly called the Uniform Militia Act or the Militia Act of 1792. It built on Article I, Section 8, Clauses 15 and 16 of the Constitution, which give Congress the power to provide for calling forth the militia, and "to provide for organizing, arming, and disciplining, the Militia," while reserving to the states the appointment of officers and the authority of training according to the discipline Congress prescribes.

The core of the act was in its first section. It required that each and every free able-bodied white male citizen of the respective states, resident therein, who was or should be of the age of eighteen years, and under the age of forty-five years, with certain exemptions, should be enrolled in the militia by the captain or commanding officer of the company within whose bounds he resided, and the act set twelve months for the first enrollment.

I should say plainly what is in that text, because history deserves the whole record. The 1792 act limited enrollment to white men. That was the law of a country that still held slaves and had not yet reckoned with its own Declaration. The exclusion of Black citizens from the militia was a wrong, it later contributed to the twin evils of disarmament and exclusion that came with the Black Codes, and the story of how the Fourteenth Amendment answered it is told in Black Codes, the freedmen and the Fourteenth Amendment's right to bear arms. A conservative who loves the Founding does not need to defend every line of it. We can honor the principles and admit where the practice fell short of them.

Then comes the part that makes this act a goldmine for the arms debate. The act provided that every citizen so enrolled and notified should, within six months, provide himself with the equipment the law listed. For an infantryman: a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box to contain not less than twenty-four cartridges suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball. Alternatively, for riflemen: a good rifle, a knapsack, a shot-pouch and powder-horn, twenty balls suited to the bore of the rifle, and a quarter of a pound of powder.

Notice what the law did not say. It did not say the government would issue muskets from an armory. It did not say the citizen could apply for one. It said each man shall provide himself. The arms were private property, kept at home, and the law assumed they were already there or would be soon.

What the act tells us about the founders' assumptions

Four points follow.

One. The founders assumed an armed population. Congress could write that sentence only because the average household either owned a musket or could buy one. A requirement to arrive with private arms makes sense in a society where arms are ordinary property. If the founders had thought of guns as a special danger to be held by the state, they would have written the act the other way around: the government will store the weapons, and issue them when called.

Two. The right and the duty were two sides of the same coin. The militia clause of the Second Amendment says a well regulated militia is necessary to the security of a free state. The 1792 act shows what regulated meant in practice: a duty to be armed and equipped, supervised by the officers of one's own district. The citizen's private ownership was what made the public defence possible. You cannot regulate a militia without arms, and Congress was not going to buy them.

Three. The militia was the people. The words of the act speak of every able-bodied citizen in the age range. It was not a volunteer force or a select corps. That matches the Virginia Declaration of 1776, which described the militia as "composed of the body of the people, trained to arms," and George Mason's later remarks. The point is developed in George Mason and the well regulated militia composed of the body of the people.

Four. The Supreme Court noticed. In United States v. Miller (1939), the Court described the founding-era militia as all males physically capable of acting in concert for the common defense, and said that 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. In District of Columbia v. Heller (2008), Justice Scalia's opinion used the 1792 statute and the colonial militia laws to show that the militia was drawn from the whole body of citizens, who kept their own weapons. The argument that "militia" means a government-run unit does not survive the actual statute.

The strongest objection, stated fairly

The best form of the counterargument goes like this. The 1792 act is a militia law. Its point was to create a military force, and the arms requirement was a tool of that purpose. It tells us about the militia and nothing about a private right to keep a gun at home for protection. A person could be required to own a musket for the militia without having any right to own one for himself. After all, the same government that required it could require it only for as long as it wanted a militia, and when the militia system changed, the duty and with it any supposed right would lapse. The Second Amendment, on this reading, protects the state's ability to keep a militia, and the 1792 act is just the machinery.

I want to answer that in four short points.

1. A duty to be armed presupposes a freedom to be armed. The 1792 statute does not grant citizens the permission to own muskets. It assumes they own them already. A government that orders every man to buy a musket cannot at the same time claim authority to forbid him from owning one. The two positions contradict each other.

1. The Second Amendment says "the right of the people." The militia clause is a preface, and the operative clause is about a right held by the people. The Court in Heller read the prefatory clause as explaining one purpose without limiting the right.

1. Private arms were not only for the militia. The same people who owned muskets for militia duty used them for defence against thieves, for hunting, and for protection on the frontier. The state declarations discussed in What Pennsylvania and Vermont wrote about arms before the Second Amendment speak of defence of "themselves and the state."

1. The objection concedes the facts it needs to deny. If the militia was the whole body of men, and each supplied his own arms, then the individual's private ownership of those arms was the foundation of the system. You cannot build a house on a floor and then say the floor is not part of the house.

How the system decayed

The system the 1792 act created did not last in its original form, and the way it decayed is instructive.

The act had a structural weakness. It set the duty to enroll and to be armed, but the fines in the 1792 text I read apply to militiamen who disobey a presidential call-up, not to a citizen who fails to enroll or to buy his equipment, and the states were left to arrange the militia as their own legislatures directed. In the decades after 1792 the system weakened. One town history describes the company musters of the 1840s as a brief parade followed by drinking and fights. By the 1830s many states had let their unorganized militia lapse in favor of volunteer militia units, which carried on as city guards, parade units and even social clubs.

Notice what decayed. The compulsory training faded. The enrollment lists faded. What did not fade was the ordinary American habit of owning firearms, and that is the more important fact for our purposes. The duty to own a musket for the militia disappeared, but the right to own one stayed in place, because it had never depended on the duty. That is the opposite of what the objection predicts. If the right had been only a function of the militia system, it would have lapsed when the system did.

By the time of the Civil War the old universal militia had become largely a legal category on paper, and armies were raised from volunteer units.

The Militia Act of 1903 and the National Guard

Congress took up the issue again at the turn of the twentieth century. The experience of the Spanish-American War in 1898 had shown that the state volunteer forces and the old militia were poorly prepared. The reform came with the Militia Act of 1903, often called the Dick Act after Representative Charles Dick of Ohio, the bill's sponsor, and signed in January 1903.

The 1903 act did two things that matter here. First, it created the modern structure of the National Guard: it divided the militia into two classes, the organized militia, designated the National Guard, and the remainder of the able-bodied men, who were the reserve militia. Second, it brought the Guard under federal standards of training and equipment, with federal funding, in exchange for federal supervision. The reform gave America a professional reserve force, and it also altered the meaning of the word militia in everyday use. After 1903, when a person in the twentieth century heard "militia," he was likely to think of the Guard, a state military unit with uniforms and armories, rather than of the armed citizenry the founders had in mind.

That shift explains much of the confusion that grew up around the Second Amendment in later decades. A reader who thinks "militia" means the National Guard will conclude that the amendment protects the Guard's arms, and no one else's. But the 1792 act and the 1903 act, read together, show that the Guard was one part of a larger legal concept, and that the rest of the concept never went away.

The unorganized militia in federal law today

This brings us to the statute that still defines the militia, 10 U.S.C. § 246. It says that 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. It then divides the militia into two classes: the organized militia, which consists of the National Guard and the Naval Militia, and the unorganized militia, which consists of the members of the militia who are not members of either.

The provision was renumbered from section 311 to section 246, so older sources cite the earlier number, and you should check the current text on the House's Office of the Law Revision Counsel site. But the main structure has held since the 1903 reform: the organized militia of the Guard, and the unorganized militia of everyone else who fits the category.

The Heller Court made the same point about the militia in general: Justice Scalia wrote that the militia consists of all able-bodied men, and that the federally organized militia may consist of a subset of them. That is a nice irony. The statute that people cite to say the Second Amendment is about the Guard actually defines a militia that includes a huge class of ordinary citizens who are not in the Guard at all.

I do not want to oversell this point. The unorganized militia is a category in the statute, not a unit with officers and drill. It does not carry a right to possess arms by itself. But it is a useful reminder that the founders' idea of the militia as the armed body of the people never left the federal code. It stayed on the books, quietly, while the debate raged over what the word meant.

For the longer arc from 1792 to the modern Guard, see How Congress once set out to make every American a rifleman in 1903, which follows the push to make marksmanship a civic skill, and ninety years of federal gun law in the dates that changed the rules for the federal statutes that came afterward.

What it means for a family

Why should a family in the twenty-first century care about an act from 1792? Because it answers the question of who the government thought should hold the means of defence. The founders' answer was the citizen. They built a system in which the government depended on the people's arms and not the other way around.

Think about the arithmetic of that arrangement. A republic that must call on its citizens to bring their own weapons has to trust those citizens. A republic that holds all weapons in its own armories does not. The first is a government of citizens, and the second is something the founders called by an uglier name. When Madison wrote in Federalist No. 46 about the advantage of being armed, he was describing a country in which the militia, "with arms in their hands," could check a standing army. That check works only if the citizens own the arms. (The text of that essay is read closely in Madison's Federalist 46 and the advantage of being armed that tyrants fear.)

A small observation to close the argument. The government that passed the 1792 act did not ask anyone whether he had a "sporting purpose" for his musket. It did not require a waiting period, a background check, or a safety course, and it did not ask a man to justify his need. It asked him to show up with the gun, and to bring twenty-four cartridges. You may think the modern world requires more care than that. Some of it does. But a person who tells you that the founders would be astonished at the idea of a private citizen owning a firearm has not read the statute.

The case in brief

1. The Uniform Militia Act of May 8, 1792, enrolled able-bodied men aged 18 to 45 in the militia and ordered each to provide his own musket or rifle, powder, ball and equipment.
2. A law that commands citizens to bring private arms assumes an armed population, and a government that requires ownership cannot also claim the power to forbid it.
3. The system decayed through the nineteenth century because training lapsed and enforcement was left to the states, but the habit of private ownership continued.
4. The Militia Act of 1903 created the modern National Guard, and today 10 U.S.C. 246 still defines an organized militia and an unorganized militia of ordinary able-bodied citizens.
5. Miller and Heller both read the founding militia as the body of the people, bringing arms of their own.

What you can do: read 10 U.S.C. 246 on the Office of the Law Revision Counsel's website and see for yourself how federal law still defines the militia.