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  • April 13, 2021

Exclusive: How the Second Amendment comes from something that happened in the 2nd century BCE

 Exclusive: How the Second Amendment comes from something that happened in the 2nd century BCE

Many of the authors of the Constitution didn’t want the Bill of Rights at all. Notably, Alexander Hamilton—who did as much as anyone to see the Constitution passed—thought the entire series of amendments was unnecessary as the Constitution itself contained sufficient checks on government power. 

In any case, when Second Amendment advocates of guns as a direct check on tyranny visualize exactly how their Freedom Bullets are supposed to work, they seem to generally omit the military from their calculations. Or, if they do acknowledge its existence, they surround it with Deep Thinking like “most soldiers come from Southern states,” or “most soldiers come from rural areas,” or anything else that it takes to believe that if push actually came to a bayonet shove, the military would be on the side of the people toting guns into Washington, D.C. The people who wrote the amendment had no such delusions. 

That doesn’t mean the founders expected people to take up arms against the military. Far from it.

Written in the wake of war, the Constitution has an absolute understanding that a professional standing army is the instrument by which a state imposes its will, not just against enemies but against citizens. All of those involved were well aware of how an army could be wielded by despotic rulers. That’s why the First Amendment hustles through a whole cluster of personal rights, then the Second and Third get right on with limiting the power of the professional state military.

The reason the founders feared the use of a professional military was not only the war they had just been through, but one that happened in the second century BCE. And that’s because all these founding knuckleheads were fixated on the idea of America as the new Rome. 

At the very end of the 2nd century BCE, a general named Gaius Marius reshaped what had been temporary forces of landowners into permanent, paid legions that grew ever more numerous and effective. It was just one in a series of changes that expanded who could be in the army. And while it wasn’t the first time Romans had issued a paycheck to soldiers kept long in the field, it was the point at which the Roman state accepted the idea of soldiering as a profession. That profession could be held by Romans of any rank, including those who had no wealth but that given by their commanders. Combine this with the idea of an army that was not raised seasonally, or in response to a threat. From that point forward, the legions were a permanent fixture.

It was a change that both protected the republic, and doomed it. 

Keeping professional standing armies in the field at all times meant that their loyalty was increasingly transferred to their leaders and away from the state. Soon after Marius’ reforms, every Roman general became a potential tyrant. Within 50 years, a guy named Julius came splashing across the Rubicon. The founders, who thought constantly about how they were building a nation modeled on that lost republic, also thought constantly about how the creation of those professional legions turned generals into powers, and transmuted republic into empire.

That’s why Washington was called “the new Cincinnatus” long before he announced two terms was enough. It wasn’t his surrender of presidential power that generated marvel, but his walking away from his power as military commander. Omnia reliquit servare rempublicam

By the time the Second Amendment was drafted, this Rome-loving, Livy-reading bunch of misfits were already realizing that there was no putting the genie back in the bottle. They were going to have a professional military … but it scared them. They grappled with the consequences throughout the Constitution, including in the mangled Fifth Amendment. 

The use of a professional military was just one of several points on which the founders were pinned between romantic words and ugly realities. These were, after all, men who traded high-minded rhetoric about freedom while owning people for the purposes of regular rape. These are men who talked liberty and sold their own children. 

Though the buffer of the Atlantic still teased them with the idea that the U.S. could be defended with doughty yeoman farmers who sallied forth with their muskets only in times of war, the end of the 18th century wasn’t 107 BCE and that was no longer a possibility. 

Among other things, Shays’ Rebellion in 1786 and 1787 had already made it clear that the federal government couldn’t be toothless. Daniel Shays was just one of many former Revolutionary War soldiers who looked at what had just happened and drew from it what might be thought of as the Game of Thrones lesson: If one bunch can oust the “legitimate” government and replace it with themselves, why can’t we do the same? The time it took the government to organize a response invited disaster. 

Waiting on volunteers or depending on soldiers whose fixed terms of enlistment meant that regiments melted away almost mid-battle simply wasn’t adequate. Though some founders, like the perennially bloodthirsty Jefferson, were willing to put up with a little pillaging and murder (this was a man who responded to news of the Reign of Terror with guillotine jokes), most realized that a ready force was now requisite. The government was going to have to buy weapons, train soldiers, and hopefully keep them from having similar thoughts to Shays.

And that’s why those militarily focused amendments are in there. The plain language of the Second Amendment makes it clear that the reason people were allowed to have weapons wasn’t so they could conduct a violent protest, or protect themselves from robbers, or even hunt up a few rabbits, but to serve the state as an instrument of security. The militia isn’t there to oppose the regular military. It’s there to supplement it. The Second and Third Amendments are designed to limit the scope of the military by providing an alternative.

It doesn’t matter if you define the militia as the National Guard or as “all the people,” the purpose of the Second Amendment was to stake out room for a force to operate alongside the professional army, not in opposition.  

It was a clumsy solution from men who feared that a professional army was one giant leap down the road to turning republic in empire. On that point, they probably had pretty good reason for concern. After all, having a military makes people want to use it for something. In about the same amount of time it took to go from Marius to Caesar, the United States managed to do a pretty good job busting up Mexico. A quarter of the presidents were former generals.

But overall, the idea of supplementing the standing military with citizen soldiers hasn’t worked out badly. There are currently over 440,000 citizens in the National Guard, and having them on hand for everything from dealing with hurricanes to handling Congressional security is a pretty fine idea … even if it came out of some pretty ugly compromises. 

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