The Founding Fathers Had an Individual Mandate—to Buy Guns

The acrimony over the Affordable Care Act (ACA) has now (perhaps inevitably) drawn in the Founding Fathers. Writing for Slate, Yale Law professor Akhil Reed Amar cited the 1792 Militia Acts as a legal precedent that Solicitor General Donald Verrilli, widely criticized for his bumbling under the onslaught of questions by the conservative justices on the Supreme Court, should have cited. The Militia Acts have their own individual mandate:

Each and every free able-bodied white male citizen...who is or shall be of the age of eighteen years, and under the age of forty-five years...shall...be enrolled in the militia....Every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein, to contain not less than twenty four cartridges....” [emphasis added]

Amar wasn’t the first to make this connection—Harvard Law professor Einer Elhauge noted it back in January in an article in the New England Journal of Medicine, and health-care reform advocates were talking about the legal precedent as early as 2010.

The crux of the argument is that the Supreme Court would be doing more than simply dealing a blow to the ACA, the Obama administration, and the long-held liberal dream of universal health care if the justices declare the act unconstitutional. They will also be ignoring an important precedent, not to mention the fact that the Founding Fathers, some authors of the very Constitution that the strict originalists on the Court cherish so much, passed an individual mandate without too much of a ruckus.

The genesis of the Militia Acts was in the American Revolution. Despite having had limited combat value in the war, the concept of a citizens’ militia held a great deal of political appeal in the new American republic. One of the militia’s few detractors was, ironically, George Washington, who wrote in a letter to Congress that “to place any dependence on the Militia, is, assuredly, resting upon a broken staff.” Nevertheless, throughout the 1780s and into the 1790s, the militias were, with the exception of a single regiment of regulars, the only army theoretically under federal authority. The new Constitution gave Congress the authority to “provide for organizing, arming, and disciplining, the Militia,” but no national militia standards were enacted during the first three years of the Washington administration, despite the president’s longstanding preference for a “respectable and well established Militia.” This state of affairs changed only after a relatively obscure military catastrophe.

After the Revolutionary War, the nascent United States found itself in possession of a vast amount of territory extending to the Mississippi. Great Britain had tried before the Revolution to restrict white settlement beyond the Appalachian Mountains in order to placate the various Native American tribes living in the region, but with the British out of the picture, American settlers began to move in. Conflict quickly developed between the settlers and the native tribes on the frontier, particularly in the Ohio River Valley, the old Northwest Territory.

In 1790 Washington sent in the sole regiment of regulars, backed by militia, to subdue the tribal alliance, led by the Miami chief Little Turtle, that had developed in opposition to the Americans (an alliance, incidentally, sponsored by the British). The U.S. force was defeated by Little Turtle near what is now Fort Wayne, Indiana, and was forced to retreat. Washington tried again the next year, again sending in the regulars, backed by militiamen, to western Ohio. Nearly half the army deserted in the subsequent campaign before even engaging the enemy; the remaining army was almost annihilated at the Battle of the Wabash, near modern-day Fort Recovery, Ohio. Only around fifty soldiers walked out unscathed, from a force of over 1,000. It was the worst defeat the U.S. Army ever experienced in over a century of Indian wars, with losses proportionally far greater than those at the much more famous Battle of the Little Bighorn.

Washington went into a fury when he heard the news—he called the commanding general “worse than a murderer.” But Washington used the opportunity, which so baldly exposed the inadequacy of the existing militia structure, to get military reform. The Militia Acts passed through Congress in early May 1792, establishing broad and well-defined national standards for the state militias, and the regular army was nearly quadrupled in size. The enlarged army went on to defeat the Indian coalition, and the Militia Acts, augmented by additional legislation in the nineteenth century (particularly during the Civil War), remained on the books until the establishment of the modern National Guard system in 1903.

Conservatives have dismissed the idea that the Militia Acts set forth any legal precedent, noting (correctly) that Congress was operating under the militia clause of Article I, Section 8 of the Constitution, not the clause regulating interstate commerce, which is the constitutional basis for the Affordable Care Act’s individual mandate (and a whole host of other legislation besides, including the Civil Rights Act).

The Militia Acts are not incontrovertible legal evidence that the individual mandate is constitutional, nor are they proof that the Founding Fathers would have been behind universal health care. What they are proof of is that, in the face of what was perceived to be a dire national need—a cohesive national militia—one of the earliest Congresses, which included its fair share of delegates to the Constitutional Convention, and George Washington himself, saw no problem with mandatory purchase laws to achieve desired policy goals. The Militia Acts are a historical precedent for the individual mandate, not simply a strictly legal one, and there’s room for both in a courtroom. During the Prop. 8 trial in California over the state’s gay marriage ban, a federal appeals court heard testimony from historians Nancy Cott and George Chauncey, even though their testimony was not about the letter of the law.

The gun mandate in the law, incidentally, was brought up for repeal in November 1792 after several congressmen received complaints about the undue burden it placed on citizens, particularly young citizens who could not afford to outfit themselves (shades of today’s arguments about how Obamacare would hurt small businesses and entrepreneurs). Fully equipping oneself for the militia could cost upwards of $2,000, adjusted for inflation. Alternative methods of outfitting were proposed, including simply having the federal government assume the responsibility of equipping the militia. The alternatives were rejected, and the proposed repeal was defeated in a landslide.