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Of
Debates in Congress
Amendments
to the Constitution
Monday,
August 17, 1789
1
Annals of Cong. 757 et seq. (J. Gales ed., 1834)
In
the debate below, the House of Representatives considered
the wisdom of including an exception for those "religiously
scrupulous" from being compelled to bear arms. This
discussion was continued on August 20, 1789.
RJ&L
Religious Institutions Group
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778
The
House again resolved itself into a committee, Mr. Boudinot
in the chair, on the proposed amendments to the constitution.
The third clause of the fourth proposition in the report
was taken into consideration, being as follows: "A well
regulated militia, composed of the body of the people, being
the best security of a free state, the right of the people
to keep and bear arms shall not be infringed; but no person
religiously scrupulous shall be compelled to bear arms."
Mr.
Gerry. --this declaration of rights, I take it, is intended
to secure the people against the mal-administration of the
Government; if we could suppose that, in all cases, the
rights of the people would be attended to, the occasion
for guards of this kind would be removed. Now, I am apprehensive,
sir, that this clause would give an opportunity to the people
in power to destroy the constitution itself. They can declare
who are those religiously scrupulous, and prevent them from
bearing arms.
What,
sir, is the use of a militia? It is to prevent the establishment
of a standing army, the bane of liberty. Now, it must be
evident, that, under this provision, together with their
other powers, Congress could take such measures with respect
to a militia, as to make a standing army necessary. Whenever
Governments mean to invade the rights and liberties of the
people, they always attempt to destroy the militia, in order
to raise an army upon their ruins. This was actually done
by great Britain at the commencement of the late revolution.
They used every means in their power to prevent the establishment
of an effective militia to the eastward. The Assembly of
Massachusetts, seeing the rapid progress that administration
were making to divest them of their inherent privileges,
endeavored to counteract them by the organization of the
militia; but they were always defeated by the influence
of the Crown.
Mr.
Seney wished to know what question there was before the
committee, in order to ascertain the point upon which the
gentleman was speaking.
Mr.
Gerry replied that he meant to make a motion, as he disapproved
of the words as they
Pg.
779
stood.
He then proceeded. No attempts that they made were successful,
until they engaged in the struggle which emancipated them
at once from their thraldom. Now, if we give a discretionary
power to exclude those from militia duty who have religious
scruples, we may as well make no provision on this head.
For this reason, he wished the words to be altered so as
to be confined to persons belonging to a religious sect
scrupulous of bearing arms.
Mr.
Jackson did not expect that all the people of the United
States would turn Quakers or Moravians; consequently, one
part would have to defend the other in case of invasion.
Now this, in his opinion, was unjust, unless the constitution
secured an equivalent; for this reason he moved to amend
this clause, by inserting at the end of it, "upon paying
an equivalent, to be established by law."
Mr.
Smith, of South Carolina, inquired what were the words used
by the conventions respecting this amendment. If the gentleman
would conform to what was proposed by Virginia and Carolina,
he would second him. He thought they were to be excused
provided they found a substitute.
Mr.
Jackson was willing to accommodate. He thought the expression
was, "No one, religiously scrupulous of bearing arms, shall
be compelled to render military service, in person, upon
paying an equivalent."
Mr.
Sherman conceived it difficult to modify the clause and
make it better. It is well known that those who are religiously
scrupulous of bearing arms, are equally scrupulous of getting
substitutes or paying an equivalent. Many of them would
rather die than to do either one or other; but he did not
see an absolute necessity for a clause of this kind. We
do not live under an arbitrary Government, said he, and
the States, respectively, will have the government of the
militia, unless when called into actual service, besides,
it would not do to alter it so as to exclude the whole of
any sect, because there are men amongst the Quakers who
will turn out, notwithstanding the religious principles
of the society, and defend the cause of their country. Certainly
it will be improper to prevent the exercise of such favorable
dispositions, at least whilst it is the practice of nations
to determine their contests by the slaughter of their citizens
and subjects.
Mr.
Vining hoped the clause would be suffered to remain as it
stood, because he saw no use in it if it was amended so
as to compel a man to find a substitute, which, with respect
to the Government, was the same as if the person himself
turned out to fight.
Mr.
Stone inquired what the words "religiously scrupulous" had
reference to: was it of bearing arms? If it was, it ought
so to be expressed.
Mr.
Benson moved to have the words "but no person religiously
scrupulous shall be compelled to bear arms," struck out.
He would always leave it to the benevolence of the Legis-
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780
lature,
for, modify it as you please, it will be impossible to express
it in such a manner as to clear it from ambiguity. No man
can claim this indulgence of right. It may be a religious
persuasion, but it is no natural right, and therefore ought
to be left to the discretion of the Government. If this
stands part of the constitution, it will be a question before
the Judiciary on every regulation you make with respect
to the organization of the militia, whether it comports
with this declaration or not. It is extremely injudicious
to intermix matters of doubt with fundamentals.
I
have no reason to believe but the Legislature will always
possess humanity enough to indulge this class of citizens
in a matter they are so desirous of; but they ought to be
left to their discretion.
The
motion for striking out the whole clause being seconded,
was put, and decided in the negative--22 members voting
for it, and 24 against it.
Mr.
Gerry objected to the first part of the clause, on account
of the uncertainty with which it is expressed. A well regulated
militia being the best security of a free State, admitted
an idea that a standing army was a secondary one. It ought
to read, "a well regulated militia, trained to arms;" in
which case it would become the duty of the Government to
provide this security, and furnish a greater certainty of
its being done.
Mr.
Gerry's motion not being seconded, the question was put
on the clause as reported; which being adopted,
Mr.
Burke proposed to add to the clause just agreed to, an amendment
to the following effect: "A standing army of regular troops
in time of peace is dangerous to public liberty, and such
shall not be raised or kept up in time of peace but from
necessity, and for the security of the people, nor then
without the consent of two-thirds of the members present
of both Houses; and in all cases the military shall be subordinate
to the civil authority." This being seconded.
Mr.
Vining asked whether this was to be considered as an addition
to the last clause, or an amendment by itself. If the former,
he would remind the gentleman the clause was decided; if
the latter, it was improper to introduce new matter, as
the House had referred the report specially to the Committee
of the whole.
Mr.
Burke feared that, what with being trammelled in rules,
and the apparent disposition of the committee, he should
not be able to get them to consider any amendment; he submitted
to such proceeding because he could not help himself.
Mr.
Hartley thought the amendment in order, and was ready to
give his opinion on it. He hoped the people of America would
always be satisfied with having a majority to govern. He
never wished to see two-thirds or three-fourths required,
because it might put it in the power of a small minority
to govern the whole Union.
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781
The
question on Mr. Burke's motion was put, and lost by a majority
of thirteen.
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