Monday, February 17, 2020

The gun guy and illegal militia founder who became President: George Washington

By David Kopel - February 17, 2020 at 07:05PM

Presidents' Day should be a day of reflection on the virtues of the leaders who helped to preserve, protect, and defend our constitutional republic. So let's look at the record of George Washington and the armed citizenry.

In early 1775, tensions between Great Britain and the American colonies were reaching the breaking point. The previous October, King George III had forbidden the import of arms and ammunition into the colonies, a decision which the Americans interpreted as a plan to disarm and enslave them. Kopel, How the British Gun Control Program Precipitated the American Revolution, 38 Charleston Law Review 283 (2012).

Without formal legal authorization, even from the Continental Congress, Americans began to form independent militias, outside the traditional chain of command of the royal governors. In February 1775, George Washington and George Mason organized the Fairfax Independent Militia Company.

According to Mason's Fairfax County Militia Plan for Embodying the People, "a well regulated Militia, composed of the Gentlemen, Freeholders, and other Freemen"
was needed to defend "our ancient Laws & Liberty" from the Redcoats. "And we
do each of us, for ourselves respectively, promise and engage to keep a good Fire-lock in proper Order, & to furnish Ourselves as soon as possible with, & always keep by us, one Pound of Gunpowder, four Pounds of Lead, one Dozen Gun Flints, & a pair of Bullet-Moulds, with a Cartouch [cartridge] Box, or powder-horn, and Bag for Balls." 1 The Papers of George Mason 210-11, 215-16 (Robert A. Rutland ed., 1970). Similar militias were being formed all over the American colonies, with no formal authorization and no chain of command to the established government. The legal bases of the militias were the natural rights of self-defense and self-government.

Because Virginia's House of Burgesses had been suspended by the Royal Governor, Lord Dunmore, the defiant Virginians assembled in Richmond in March 1775 as a special convention. There, delegate Patrick Henry gave his famous speech, "The War Inevitable." William Wirt, Sketches of the Life and Character of Patrick Henry (1817). As Henry accurately explained, all petitions for peaceful conciliation with the British had been "spurned with contempt." The British army in North America had only one purpose: "to force us to submission." Because war was inevitable, Henry argued, it was better to fight now, before the British could take Americans' guns:

An appeal to arms and to the God of hosts is all that is left us! They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house?…Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. Three millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us.

Indeed, a few weeks later, on the evening of April 18, the British army occupying Boston would march off to Lexington and Concord to conduct house-to-house searches to seize firearms and gunpowder. The American resistance to arms seizures would mark the beginning of the American Revolution.

Persuaded by Henry's eloquence, the Virginia Convention formed a committee—including Patrick Henry, Richard Henry Lee, George Washington, and Thomas Jefferson—"to prepare a plan for the embodying, arming, and disciplining such a number of men as may be sufficient" to defend the commonwealth. The Convention urged "that every Man be provided with a good Rifle" and "that every Horseman be provided . . . with Pistols and Holsters, a Carbine, or other Firelock." ("Firelock" was a synonym for "flintlock," the most common firearms of the time.) Journal of Proceedings of Convention Held at Richmond 10-11 (1775).When the Virginia militiamen assembled a few weeks later, many wore canvas hunting shirts adorned with the motto from the conclusion of Henry's speech: "Liberty or Death." Henry Mayer, A Son of Thunder: Patrick Henry and the American Revolution 251 (1991).

As Major General and Commander-in-Chief of the Continental Army during the War of Independence, Washington had to deal with soldiers who were adamant about their personal independence. Even Americans who enlisted in the Continental Army often refused to sign up for more than a year. At the end of their year, they might leave for home, in the middle of a campaign. George Washington's surprise attack on the British at the Battle of Trenton, Dec. 26, 1776, was a risky, successful gamble to win a victory before the imminent expiration of enlistments left him without a functioning army. The previous winter, the American expedition to take Canada had been forced to launch a premature, unsuccessful attack on Quebec City because half the American enlistments would expire in January.

The militias posed even more problems. For one thing, they were reluctant to be sent on distant deployments, so Washington did not always have the manpower he needed for a given batttle. On the other hand, by fighting part time and working on their farms the rest of the time, American citizen-soldiers kept the economy afloat.

The sedentary nature of the militia created, surprisingly, a superiority in tactical mobility. British naval dominance (before the French arrived later in the war) meant the British army could always move faster than the Continental Army and could attack anywhere near the coast. But the militia, comprised of most able-bodied adult males, could rise wherever the British deployed. As historian Daniel Boorstin put it, "[t]he American center was everywhere and nowhere—in each man himself." Daniel
Boorstin, The Americans: The Colonial Experience 370 (1965).

The Americans could better afford losses in battle because a large fraction of the adult population was available to fight. Redcoats or German mercenaries imported from across the Atlantic were more difficult to replace. The British could capture cities on or near the coast—such as Boston, New York City, or Savannah. Yet control of the vast interior proved impossible. Many militiamen had learned warfare from Indian fighting. In the mountains, swamps, and forests, they denied use of the country to the British. The militiamen had the advantages of intimate knowledge of the terrain, support from much of the local population, and the ardor that comes with defending one's homeland.

Whether in the militia or the Continental Army, the guns deployed were mostly personal firearms. As late as 1781, George Washington insisted that enlistees in the Continental Army provide their own guns. Letter from George Washington to Joseph Reed (June 24, 1781), in 22 The Writings of George Washington 258 (Jared Sparks ed., 1834); Letter from George Washington to Thomas Parr (July 28, 1781), in id. at 427.

Americans' experience with firearms helped make them effective fighters. In 1789, historian David Ramsay recounted the June 1775 Battle of Bunker Hill: "None of the provincials in this engagement were riflemen, but they were all good marksmen. The whole of their previous military knowledge had been derived from hunting, and the ordinary amusements of sportsmen. The dexterity which by long habit they had acquired in hitting beasts, birds, and marks, was fatally applied to the destruction of British officers." 1 A History of the American Revolution 190 (Lester H. Cohen ed., Liberty Fund, 1990) (1789).

As Washington wrote in 1777, "Our Scouts, and the Enemy's Foraging Parties, have frequent skirmishes; in which they always sustain the greatest loss in killed and Wounded, owing to our Superior skill in Fire arms." Letter from George Washington to John A. Washington (Feb. 24, 1777), in 7 Writings of George Washington, at 198.

Washington worried, however, that although militiamen were good shots, they were troublesome to employ in a long campaign, for the militia's "want of discipline & refusal, of almost every kind of restraint & Government, have produced . . . an entire disregard of that order and subordination necessary to the well doing of an Army." Letter from George Washington to John Hancock, President of the Continental Congress (Sept. 2, 1776), in 5 Journals of the Continental Congress, 1774-1789, at 733 (Worthington Chauncey Ford et al. eds., 1904-37).

A modern study of Washington's use of the militia in Connecticut, New York, and New Jersey concludes that, while the militia usually could not, by itself, defeat the Redcoats in an open field battle, it was essential to American success:

Washington learned to recognize both the strengths and the weaknesses of the militia. As regular soldiers, militiamen were deficient. . . . He therefore increasingly detached Continentals to support them when operating against the British army. . . . Militiamen were available everywhere and could respond to sudden attacks and invasions often faster than the army could. Washington therefore used the militia units in the states to provide local defense, to suppress Loyalists, and to rally to the army in case of an invasion. . . . Washington made full use of the partisan qualities of the militia forces around him. He used them in small parties to harass and raid the army, and to guard all the places he could not send Continentals. . . . Rather than try to turn the militia into a regular fighting force, he used and exploited its irregular qualities in a partisan war against the British and Tories.

Mark W. Kwasny, Washington's Partisan War: 1775-1783, at 337-38 (1996). Thus, in 1777, when New Jersey was a major theater of the war, General George Washington implored the New Jersey county militias "by all you hold dear, to rise up as one Man, and rid your Country of its cruel invaders. . . . [T]his can be done by a general appearance of all its Freemen armed and ready to give them opposition. . . . I am convinced every Man who can bear a Musket, will take it up." 10 Writings of George Washington, at 90.

Over a decade later, President George Washington's first State of the Union address to a joint session of Congress urged that "A free people ought not only to be armed but disciplined; to which end a uniform and well digested plan is requisite." 1 Journal of the Second Session of the Senate 103 (1820). Congress finally passed militia acts in 1792, organizing the Militia of the United States. As a practical matter, extensive militia training was beyond the capability of the small federal government, so training remained the responsibility of state and local governments.

While Washington strongly supported Americans taking up arms to defend their inherent rights, he strongly opposed the use of arms over transient political disputes. So in 1794, President Washington called forth the state militias to suppress the Whiskey Rebellion in western Pennsylvania. Indeed, Washington was the only American President to personally command the military in the field while he was President.

Washington obeyed the statutory command that before actually using the militia, "the President shall … by proclamation, command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time." First Militia Act of 1792, 1 Stat. 264 (1792). With the appearance of George Washington in command of a force of 13,000, the Whiskey Rebellion collapsed without need for fighting. Of course no one made any effort to prohibit the rebels' from possessing firearms. 

Like most land-owning Virginians, George Washington was an enthusiastic hunter. He was also a gun collector, particularly prizing a pair of pistols given him by the Marquis de Lafayette, and another pistol he received in 1755 from British Major General Edward Braddock, during the French & Indian War. This latter pistol was Washington's sidearm during the Revolution.

Like all men, including great ones, Washington had some of the character flaws typical of the men of his time. Americans who celebrate Washington's Birthday do not imagine that he was perfect; we do recognize that his patriotism, leadership, and rectitude are worthy of admiration. Whether we celebrate on Washington's actual birthday of February 22, or on the third Monday in February (pursuant to a congressional act in 1971), we honor the ethos of responsible firearms ownership that made American independence and liberty possible.

Note: some of this essay is taken from Nicholas J. Johnson, David B. Kopel, George A. Mocsary, & Michael P. O'Shea, Firearms Law and the Second Amendment: Regulation, Rights, and Responsibilities (Aspen/Wolters Kluwer, 2d ed. 2017).


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