George Mason and the well regulated militia composed of the body of the people

On September 17, 1787, in the Pennsylvania State House, thirty-nine names were signed to the new Constitution of the United States. Three delegates who were still in the room did not. One of them was a Virginia planter who had written some of the most influential words in American political history, who owned a fine house on the Potomac and a better library, and who had a reputation for saying exactly what he thought. His name was George Mason, and he said no.

Americans know the men who signed. They should know more about the man who would not, because his refusal produced the Bill of Rights, and his definition of the militia, written eleven years earlier, answers one of the loudest arguments in the modern debate over the Second Amendment. This is a profile of a stubborn man whose stubbornness left the country with its liberties in writing.

Who was George Mason?

George Mason IV was born in 1725 in what is now Fairfax County, Virginia. He lived at Gunston Hall, an estate on the Potomac not far from Mount Vernon, and George Washington was his neighbor and, for a time, his friend. Mason held no great office. He represented Fairfax County in Virginia's House of Burgesses from 1758 to 1761, and he preferred the work of a drafter to the work of a politician. He wrote with precision, and in the 1770s, with the colonies sliding toward war, that was the skill his neighbors needed.

I should be candid about him, since a good profile does not airbrush. Mason owned slaves, as did many of the Virginia leaders, and he was at the same time a critic of the slave trade. At the Philadelphia Convention he called for an immediate end to it. He was a man of his time and place and his own contradictions, and those who admire his work on liberty should say so without pretending that the contradiction is not there.

The Virginia Declaration of Rights, 1776

In 1776, Virginia's convention in Williamsburg began to prepare a new government for a colony that was becoming a state. Mason was the main author of a declaration of rights to stand in front of the constitution. The convention adopted it on June 12, 1776. It was the first great American statement of what government may not do, and it came a few weeks before the Declaration of Independence. Its opening section is a clear ancestor of Jefferson's most famous sentences:

That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

And it spoke to the question of arms, in Section 13.

What does Section 13 say?

Here is the text as the Avalon Project prints it (spelling varies among editions):

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 governed by, the civil power.

Read it clause by clause, because it is a compact piece of political theory.

1. "A well regulated militia." The phrase appears here more than a decade before the Second Amendment. It means an organized, disciplined body. It does not mean a body that government has hand-picked.
2. "Composed of the body of the people, trained to arms." This is the definition. The militia is not a unit separate from the people. It is the people, trained. Every free adult male who could shoot belonged to it, and the training was what made it "well regulated."
3. "The proper, natural, and safe defence of a free state." The militia is the answer to the question of how a free country protects itself. Section 13 calls it "proper, natural, and safe": proper because it fits the republic, natural because it springs from the people, and safe because it does not endanger liberty as a professional army might.
4. "Standing armies, in time of peace, should be avoided as dangerous to liberty." The contrast is explicit. A standing army is what a monarchy keeps. A free republic relies on its citizens.
5. "The military should be under strict subordination to, and governed by, the civil power." The soldier answers to the elected government. This clause is the root of the constitutional principle of civilian control.

Now notice how Section 13 reads next to the Second Amendment. The opening of the federal amendment, "A well regulated Militia, being necessary to the security of a free State," reads like a compressed echo of Mason's language. I'd argue the Founders who wrote the amendment were not inventing a phrase, and that Section 13 shows what the phrase meant to a leading Virginian.

Mason at the Philadelphia Convention

Mason went to Philadelphia in the summer of 1787 and took an active part in the debates. He opposed several features of the draft, and he objected to the compromise that allowed the slave trade to continue.

On September 12, five days before the signing, Mason said that he wished the plan had been prefaced with a bill of rights. He added that it would "give great quiet to the people," and that with the aid of the state declarations "a bill might be prepared in a few hours." Elbridge Gerry of Massachusetts moved that a committee prepare one, and Mason seconded. The motion failed: ten state delegations voted no, and Massachusetts abstained. Roger Sherman answered that the state declarations of rights were not repealed by the Constitution and were sufficient. The Convention was tired and hot and wanted to go home, and its members believed that the national government, being one of enumerated powers, had no authority to violate rights in the first place. Mason did not agree. His own paper of objections explained why: the laws of the general government being paramount to the laws and constitutions of the states, the declarations of rights in the separate states were, he wrote, "no security."

When the document was ready for signature, three delegates present refused: Mason, Gerry and Edmund Randolph, the governor of Virginia. Mason put his reasons in a short paper titled "Objections to this Constitution of Government." It opens with the sentence "There is no Declaration of Rights," and goes on to say that, federal laws being paramount, the declarations of rights in the separate states are no security. He listed other complaints too. But the missing bill of rights was the first.

The Virginia ratifying convention, 1788

The fight moved to Richmond in June 1788, where Virginia's ratifying convention met. Mason stood with Patrick Henry against ratification without amendments. Their opponents included James Madison, John Marshall and Edmund Randolph, who had changed his position. The debate was long and the speeches were longer, and arms and the militia figured in it constantly, because the Constitution gave Congress power over the militia.

On June 14, Mason made a point that has been quoted ever since. He told the convention that the militia was no select body. As the speech is usually quoted: "Who are the militia? They consist now of the whole people, except a few public officers." In fairness, he also said that he could not tell who would be the militia of some future day. In the same debate, as the record has it, he recalled an old adviser's maxim that disarming the people was the most effectual way to enslave them; I paraphrase it because transcriptions of the wording differ. The record of these speeches comes from the notes taken at the time, collected in Jonathan Elliot's Debates, and the exact wording should be checked against a good edition before anyone puts it on a poster.

Virginia ratified the Constitution in late June 1788, by a vote of 89 to 79. It did so with a list of recommended amendments. Among them was a statement that "the people have a right to keep and bear arms," followed by language describing a militia drawn from the body of the people, trained to arms, as the proper defense of a free state. Mason's drafting, from a dozen years before, had traveled into the formal demands of the largest state in the Union. That list, with the demands of New York and others, supplied Madison with his working material. What the ratifying conventions demanded before Madison drafted an arms right sets out the details.

What happened to Mason's cause?

In 1789, in the First Congress, James Madison drafted amendments that would become the Bill of Rights. Mason was disappointed that the amendments did not go far enough. He had wanted structural changes too. But the substance was what he had asked for: a written list of individual rights and a statement that arms and the militia were to be protected. The amendments were ratified by the states and became part of the Constitution in December 1791. Mason died at Gunston Hall in October 1792. He had refused to sign, he had lost his fight over the document's text, and he had won his argument. The story is told alongside Mason's own in George Mason Refused to Sign, and His Objections Became the Bill of Rights, and Madison's change of heart in Madison Changed His Mind on a Bill of Rights, and His Reasons Still Teach.

How Mason's definition answers the "National Guard" reading

Now to the modern argument. One of the standard responses to the claim that the Second Amendment protects an individual right goes like this: the amendment speaks of a "well regulated Militia," the modern equivalent of the militia is the National Guard, and therefore the amendment protects only the right of the states to maintain the Guard.

Mason's text takes that reading apart in three steps.

1. The militia was composed of the people, not of an organization. Section 13 says the militia is "composed of the body of the people, trained to arms." A militia of the people cannot be reduced to a unit on a roster.
2. Mason said so again in 1788. "They consist now of the whole people, except a few public officers." If the militia is the whole people, then a right of the people to keep arms is a right to be a member of the militia in the sense that Mason and his contemporaries understood it.
3. The National Guard is a different thing. Congress reorganized the state militias into the National Guard in the Militia Act of 1903, as How Congress once set out to make every American a rifleman in 1903 explains, and federal law still draws a distinction. Under the statute that defines the militia today, 10 U.S.C. section 246, the militia consists of all able-bodied males at least 17 and under 45 (with an exception in section 313 of title 32) who are, or have declared an intention to become, citizens, and of female citizens who are members of the National Guard. The statute divides that militia into the organized militia, the National Guard and the Naval Militia, and the unorganized militia, which is everyone else in the class. Congress's own definition tracks the Founders'.

A fair-minded critic will reply that the militia in 1776 was a state institution, and that Mason's text speaks of a state's defense. That is true, and it does not help the collective-right reading. A militia composed of the body of the people exists because the people are armed. The state's defense depends on the people's right. Mason put it in a way no modern lawyer improves on: the militia is the people, trained.

The point is the one made in the context of the amendment's grammar in The right of the people means the same thing in the First, Second and Fourth. It also complements the reasoning of Madison's Federalist 46 and the advantage of being armed that tyrants fear, where Madison argued that the armed citizenry was an advantage Americans possessed over the people of almost every other nation.

Lessons from the planter who said no

There is a humor in Mason's career that I enjoy. He was a man who disliked politics and was therefore the person the republic needed. He turned down seats, left conventions early and refused to sign the most famous document in American history. Modern politics runs on ambition. Mason's influence ran on the opposite principle, a willingness to be unpopular for the sake of a sentence.

Three lessons follow for citizens today.

• Read the text before you sign it. Mason's objections were precise because he had read every line. Many modern bills are voted on unread, and a citizen who reads them is the only check left.
• Demand the list. Mason did not trust general assurances that the government would not abuse its power. He wanted the limits written down. A promise from an official is worth what the official's successor decides it is worth.
• Define your terms. The militia fight is a fight over a definition. Mason defined it in 1776, in words that survive, and every effort to redefine it must start by explaining why his meaning was wrong.

The case in brief

1. George Mason wrote the Virginia Declaration of Rights in 1776, and its Section 13 defines a well regulated militia as "composed of the body of the people, trained to arms."
2. Mason refused to sign the Constitution in 1787 because it lacked a declaration of rights, and he carried the fight to Virginia's ratifying convention in 1788.
3. Virginia ratified by 89 to 79 in 1788 with proposed amendments that included the right of the people to keep and bear arms, and those proposals fed into Madison's draft of the Bill of Rights.
4. Mason's definition answers the reading that the amendment protects only the National Guard, because the militia he described was the people, not a unit, and federal law still distinguishes the organized militia from the unorganized one.
5. Mason's example teaches citizens to read the text, demand the limits in writing, and define the terms before the argument starts.

What you can do: read Section 13 of the Virginia Declaration of Rights and the Second Amendment side by side on the Constitution page and your state's own archive, and note which words the second borrowed from the first.