George Mason’s View of a Militia as All of the People

Executive Summary

• George Mason had the most expansive view of a militia of all the founding fathers.
• This article covers his view and other interesting features of James Mason.

Introduction

James Mason is one of the most interesting of the founding fathers. Few know that the Bill of Rights is based upon his Virginia Bill of Rights and how much the US Bill of Rights watered down the Virginia Bill of Rights. This article tells the story of James Mason’s influence on the Constitution and Bill of Rights and how much his ideas were watered down.

Our References

See our references for this article and related articles at this link.

The Expansive View of the Militia

The term militia is among the most controversial in the Bill of Rights and the Federalist Papers. This is a topic I cover in the article The Complicated and Confusing History of the 2nd Amendment.

Mason’s View of the Militia as Everyone

The following quote presents that the 2nd Amendment means the upper-case militia.

George Mason also argued the importance of the militia and right to bear arms by reminding his compatriots of England’s efforts “to disarm the people; that it was the best and most effectual way to enslave them … by totally dis-using and neglecting the militia.” He also clarified that under prevailing practice the militia included all people, rich and poor.

“Who are the militia? They consist now of the whole people, except a few public officers.” Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein. – Wikipedia

Mason shows the logic that supports the citizens having weapons. But he then says that the reason is to “serve.” This statement is a bit contradictory.

Also, Madison commingles the obligation to serve as a right. However, most people don’t necessarily want to serve in the military or militia. My evidence is that compulsory military service and drafts are often necessary to get people to serve in a military capacity. Also, are these militia members to be compensated? Or, instead, will they serve only for the “enjoyment” of the potential of being shot and potentially killed?

However, suppose we put the commingling of right versus obligation. This quote is important because it is the broadest definition of a militia I have ever read from any Founding Fathers.

George Mason as the Heretic Thought Leader of the Founding Fathers

There are two generally disagreeable founding fathers, two of the most principled. One, John Adams, is far better known — as he eventually became president. The other is George Mason. John Adams finally seemed to argue with everyone, eventually even with his closest friend, Thomas Jefferson. The other, George Mason, retired from politics because his ideas were watered down. A bit about Mason’s independent and perhaps abrasive nature can be found in how he phrases the opposition to his appointment.

Mason scuttled efforts to elect him to the House of Delegates in 1784, writing that sending him to Richmond would be “an oppressive and unjust invasion of my personal liberty”. His refusal disappointed Jefferson, who had hoped that the likelihood that the legislature would consider land legislation would attract Mason to Richmond. – Wikipedia

This quote highlights that Mason was frequently ill and that the impacts of travel, which was difficult in the 1700s, put him in a more disagreeable disposition.

Broadwater noted, “given the difficulty of the task he had set for himself, his stubborn independence, and his lack, by 1787, of any concern for his own political future, it is not surprising that he left Philadelphia at odds with the great majority of his fellow delegates”.[111] Madison recorded that Mason, believing that the convention had given his proposals short shrift in a hurry to complete its work, began his journey back to Virginia “in an exceeding ill humor”.[112] Mason biographer Helen Hill Miller noted that before Mason returned to Gunston Hall, he was injured in body as well as spirit, due to an accident on the road. – Wikipedia

The more I read about this time, the more the difficulties in travel, the problematic weather imposed upon the founding fathers, and how it is apparent how it negatively impacted their health. John Adams frequently complained about his travels.

In one story that bends towards the comedic, due to a shortage of accommodations, Adams was forced to share a bed with Benjamin Franklin in a dank low-class hotel and argued with Franklin about whether the window would be left open, as Adams feared they would catch a cold.

This scene from HBO’s John Adams, which is the most detailed cinematic retelling of this time, shows John Adams calling the signing of the Declaration of Independence a fantasy, as due to travel limitations and other responsibilities, the Declaration of Independence was primarily signed individually, and such a room of signatories “never took place.” 

While excellent, the unfortunate feature of John Adams is that although it was a mini-series, there was so much story to be told that the production team and actors of the series proved they could tell.

• George Mason is nowhere in the series.
• Hamilton is only explored in broad outlines.
• Jefferson has some good scenes, but so much is unexplored.
• James Madison, James Monroe, Patrick Henry, John Hancock, John Dickinson, Roger Sherman, Benjamin Rush, John Marshal, John Jay barely have any coverage. Although they, of course, are in some scenes, they are not memorable.

I believe the US government should have commissioned many more mini-series from this excellent team to explore so much more of the material from this time.

This quote indicates Mason had a low tolerance for stupidity.

Mason had hope, coming into the convention, that it would yield a result that he felt would strengthen the United States. Impressed by the quality of the delegates, Mason expected sound thinking from them, something he did not think he had often encountered in his political career. – Wikipedia

Even though he was a significant influencer of both the Constitution and Bill of Rights, George Mason had many strong disagreements with the Constitution and the Bill of Rights, as is explained in the following quotations. He wrote the Objections to this Constitution of Government in Philadelphia, which I have included below.

1. There is no Declaration of Rights, and the laws of the general government being paramount to the laws and constitution of the several States, the Declarations of Rights in the separate States are no security. Nor are the people secured even in the enjoyment of the benefit of the common law.

This is the argument that the Constitution included no bill of rights and no protection for the states.

2. In the House of Representatives there is not the substance but the shadow only of representation; which can never produce proper information in the legislature, or inspire confidence in the people; the laws will therefore be generally made by men little concerned in, and unacquainted with their effects and consequences.

Curious. I do not recall hearing of this critique before.

3. The Senate have the power of altering all money bills, and of originating appropriations of money, and the salaries of the officers of their own appointment, in conjunction with the president of the United States, although they are not the representatives of the people or amenable to them. These with their other great powers, viz.: their power in the appointment of ambassadors and all public officers, in making treaties, and in trying all impeachments, their influence upon and connection with the supreme Executive from these causes, their duration of office and their being a constantly existing body, almost continually sitting, joined with their being one complete branch of the legislature, will destroy any balance in the government, and enable them to accomplish what usurpations they please upon the rights and liberties of the people.

This, like the 2nd objection, casts the Senate as an elitist and non-representative or responsive governing entity. In modern times, the Senate responds to its funders while deceiving the voters.

4. The Judiciary of the United States is so constructed and extended, as to absorb and destroy the judiciaries of the several States; thereby rendering law as tedious, intricate and expensive, and justice as unattainable, by a great part of the community, as in England, and enabling the rich to oppress and ruin the poor.

Mason turned out to be correct. The Supreme Court has, since its inception, been a highly elitist instrument of power.

5. The President of the United States has no Constitutional Council, a thing unknown in any safe and regular government. He will therefore be unsupported by proper information and advice, and will generally be directed by minions and favorites; or he will become a tool to the Senate–or a Council of State will grow out of the principal officers of the great departments; the worst and most dangerous of all ingredients for such a Council in a free country; From this fatal defect has arisen the improper power of the Senate in the appointment of public officers, and the alarming dependence and connection between that branch of the legislature and the supreme Executive. Hence also spurring that unnecessary officer the Vice-President, who for want of other employment is made president of the Senate, thereby dangerously blending the executive and legislative powers, besides always giving to some one of the States an unnecessary and unjust preeminence over the others.

This is an interesting critique. Mason was correct that the vice president had little to do. However, far from becoming a  tool of the Senate, the executive branch became far more powerful than initially intended.

6. The President of the United States has the unrestrained power of granting pardons for treason, which may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt.

Mason proved to be correct here as well. Bill Clinton, George W Bush, and Donald Trump provided pardons for corrupt purposes, and they also pardoned people who incriminated them.

7. By declaring all treaties supreme laws of the land, the Executive and the Senate have, in many cases, an exclusive power of legislation; which might have been avoided by proper distinctions with respect to treaties, and requiring the assent of the House of Representatives, where it could be done with safety.

8. By requiring only a majority to make all commercial and navigation laws, the five Southern States, whose produce and circumstances are totally different from that of the eight Northern and Eastern States, may be ruined, for such rigid and premature regulations may be made as will enable the merchants of the Northern and Eastern States not only to demand an exorbitant freight, but to monopolize the purchase of the commodities at their own price, for many years, to the great injury of the landed interest, and impoverishment of the people; and the danger is the greater as the gain on one side will be in proportion to the loss on the other. Whereas requiring two-thirds of the members present in both Houses would have produced mutual moderation, promoted the general interest, and removed an insuperable objection to the adoption of this government.

This happened and was a motivator for the Civil War. The Northern states developed a pattern for parasitizing the southern states.

This was also true in how northern elites monopolized the money creation function. This is precisely as Jefferson feared and part of his many disagreements with Hamilton, that banking interests would dominate agricultural interests.

9. Under their own construction of the general clause, at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their powers as far as they shall think proper; so that the State legislatures have no security for the powers now presumed to remain to them, or the people for their rights. There is no declaration of any kind, for preserving the liberty of the press, or the trial by jury in civil causes; nor against the danger of standing armies in time of peace.

This also occurred.

The states lost much of their independence to the federal government. New federal departments like the FBI and ATF were born later in US history that usurped the powers of local law enforcement. The states had their militias declared illegal. An enormous federal “standing army” became accepted, even though it is explicitly illegal under the Constitution, as I cover in the article How Did the US So Completely Violate its Own Constitutional Rules Against a Standing Army?

10. The State legislatures are restrained from laying export duties on their own produce. Both the general legislature and the State legislature are expressly prohibited making ex post facto laws; though there never was nor can be a legislature but must and will make such laws, when necessity and the public safety require them; which will hereafter be a breach of all the constitutions in the Union, and afford precedents for other innovations.

11. This government will set out a moderate aristocracy: it is at present impossible to foresee whether it will, in its operation, produce a monarchy, or a corrupt, tyrannical aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other. The general legislature is restrained from prohibiting the further importation of slaves for twenty odd years; though such importations render the United States weaker, more vulnerable, and less capable of defense. – The Bill of Rights Institute

This topic is virtually undiscussed, as the “victors” or the federalists had history written around their interests. Mason states that it will create a tyrannical aristocracy, which has occurred. It is also curious that Mason considered importing more slaves and reducing the country’s defensive capacity.

Considering Mason’s Objections

Please take a minute to consider Mason’s objections, how true most of his observations were, and how little we hear of Mason’s objections in the modern era. Instead, we are generally told to think of the US Constitution as almost a perfected document, and Mason’s objections have been suppressed, as has the accuracy of his predictions. I find both Mason’s objections and the suppression of these objections, combined with the virtual deification of the US Constitution and US Bill of Rights (which, as I covered, Mason objected to both), to be one of the fascinating stories of the founding fathers.

One curious thing is that his strong objection to the US Constitution not abolishing slavery is not listed among his complaints. However, this is covered in the following quotation.

One of them (those that objected to the Constitution) was the Virginian George Mason. Because the Constitution created a federal government he felt might be too powerful, and because it did not end the slave trade and did not contain a bill of rights, he withheld his support from the document he had played so large a role in crafting.

In 1776, Mason, then 51, had been appointed to a committee charged with drafting a “Declaration of Rights” for Virginia. From the writings of English Enlightenment philosopher John Locke (1632-1704), Mason had come to a then-radical insight: that a republic had to begin with the formal, legally binding commitment that individuals had inalienable rights that were superior to any government.

In 1787, toward the end of the Constitutional Convention in Philadelphia, Mason proposed that a bill of rights preface the Constitution, but his proposal was defeated. When he refused to sign the new Constitution, his decision baffled some and alienated others, including his old friend, George Washington. – Smithsonian Magazine

And this quotation.

Though the Bill of Rights was eventually approved, Mason was unsatisfied, believing that it failed to protect the people’s rights adequately. Faithful to his principles, he retired to his plantation a defeated man, choosing not to serve as Virginia’s first senator to avoid joining a government he feared could be the beginning of the end of liberty in the United States. – The Bill of Rights Institute

It was curious to find this information about George Mason as there has been a motivation to frame the founding fathers as much more in agreement than they were.

George Mason was ahead of his time as he wanted the Constitution to abolish slavery (although, unlike Washington, who, like Mason, was one of the largest slaveholders in Virginia, did not free his slaves – Washington freed his slaves upon his wife’s death as he died childless.). However, George Mason’s interests dovetailed with eliminating slavery, as the following quote explains.

Despite his involvement in western real estate schemes, Mason saw that land was being cleared and planted with tobacco faster than the market for it could expand, meaning that its price would drop even as more and more capital was tied up in land and slaves. Thus, although a major slaveholder, he opposed the slave system in Virginia. He believed that slave importation, together with the natural population increase, would result in a huge future slave population in Virginia; a system of leased lands, though not as profitable as slave labor, would have “little Trouble & Risque [risk]”. – Wikipedia

One can determine if Mason was only looking out for his short-term financial interests or opposed Virginia having such a large slave population.

Why Have Mason’s Objections to the US Constitution Been Historically Suppressed?

Before doing this research, I never heard that George Mason objected to the Constitution and the Bill of Rights (and that he wanted a much stronger bill of rights).

And Mason was not alone.

While revered now, the Constitution had many critics at the time who viewed it as an elitist power grab and that it would end liberty enjoyed in the colonies (then states). With the benefit of 20/20 hindsight, the Constitution led to far more centralization of power than the Federalists promised.

The US Bill of Rights is Based Upon the Virginia Bill of Rights

The Virginia Bill of Rights was written principally by George Mason. Wikipedia describes two primary influences for the Virginia Bill of Rights.

Mason based his initial draft on the rights of citizens described in earlier works such as the English Bill of Rights (1689) and the writings of John Locke. The Declaration can be considered the first modern Constitutional protection of individual rights for citizens of North America. It rejected the notion of privileged political classes or hereditary offices such as the members of Parliament and House of Lords described in the English Bill of Rights.

These are the Virginia Bill of Rights.

A DECLARATION OF RIGHTS made by the representatives of the good people of Virginia, assembled in full and free convention which rights do pertain to them and their posterity, as the basis and foundation of government.

Section 1. 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.

This was adopted by the US Constitution author Thomas Jefferson as “life, liberty and the pursuit of happiness.” 

Section 2. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants and at all times amenable to them.

Section 3. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration. And that, when any government shall be found inadequate or contrary to these purposes, a majority of the community has an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

These two items place the government in the position of serving the public.

Section 4. None of mankind is entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which, not being descendible, neither ought the offices of magistrate, legislator, or judge to be hereditary.

This relates to not having titles of nobility.

Section 5. That the legislative and executive powers of the state should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part, of the former members, to be again eligible, or ineligible, as the laws shall direct.

This is the separation of powers.

Section 6. That elections of members to serve as representatives of the people, in assembly ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented for the public good.

This provides strong protection against the government taking private property.

Section 7. That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights and ought not to be exercised.

Section 8. That in all capital or criminal prosecutions a man has a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgment of his peers.

Section 9. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Section 10. That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.

Section 11. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.

Seven to eleven provide protections for the citizens versus the legal system.

Section 12. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.

The precursor for the 1st Amendment.

Section 13. 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.

The precursor is a much better-written and clearer precursor to the 2nd Amendment. So much could have been clarified if this had been lifted directly from the Virginia Bill of Rights rather than the far more cryptic…

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Section 13 also declares that the military will be subordinate to civil power.

Section 14. That the people have a right to uniform government; and, therefore, that no government separate from or independent of the government of Virginia ought to be erected or established within the limits thereof.

Section 15. That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.

Section 16. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity toward each other.

This is a precursor to the 1st Amendment but, again, is more precise and more articulated than…

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Although the 1st Amendment is superior, it includes the right of peaceable assembly and petitioning the government.

The influences on the US Bill of Rights are apparent to see.

A Bit More About George Mason

Some exciting features are that, like George Washington and Thomas Jefferson, George Mason was from Virginia, which, due to its agricultural prowess, was considered the most influential of the colonies. George Mason was a frequent counsel to George Washington. However, as with many founders, disagreements ruined their friendship — in this case, Washington fell out with Mason over Mason’s refusal to see the US Constitution.

My reading is that if George Mason had supported the Constitution and the Bill of Rights- that is, if he had lowered his standards- he would have been a much more prominent figure in history. George Mason was, in my view, along with Benjamin Franklin, one of the most intelligent of the founding fathers.

Considering the Timeline and the Influence of Slavery on the 2nd Amendment

Now, let us consider the period for a moment.

The Bill of Rights was ratified in 1791, so the Constitution was ratified three years earlier in 1788. George Mason refused to sign the Constitution in 1788 because he said he would not sign without a bill or rights.

The Bill of Rights was ratified in December of 1791, which was four months after the Haitian slave revolt. This means news of this slave revolt would have found its way to the founding fathers before the 2nd Amendment was ratified. However, it may not be entirely necessary to view this as a catalyst, as the US already had its own experiences with slave revolts, as the following quotation covers.

These extensive militias had become part and parcel of southern society. Two decades before the Revolutionary War, Georgia passed laws that required all plantation owners or their white male employees to enlist. The Georgia militias were required to make monthly inspections of all the state’s slave quarters. According to Professor Bogus, “The Georgia statutes required patrols, under the direction of commissioned militia officers, to examine every plantation each month and authorized them to search ‘all Negro Houses for offensive Weapons and Ammunition’ and to apprehend and give twenty lashes to any slave found outside plantation grounds.”

By the time the founding fathers got together to hammer out a Constitution and Bill of Rights, there had been hundreds of slave uprisings across the South. One researcher, Herbert Aptheker, identified around 250 rebellions or conspiracies involving ten or more slaves. The fear of uprisings by African Americans was very real. Many white intellectuals who opposed slavery—including Jefferson, Mason and later Abraham Lincoln—considered it impossible for whites and blacks to live together in peace. Jefferson compared slavery to having “a wolf by the ear, and we can neither hold him, nor safely let him go.” He predicted a race war if the slaves were freed, and a civil war if they weren’t. Such was the fear that both Jefferson and Lincoln had plans to deport freed slaves.

Blacks outnumbered whites in many areas, which meant armed militias were required to “keep the peace.” Thus, Virginia’s delegates demanded that the Bill of Rights include one granting white citizens the right to bear arms and form state militias.

Without slave patrols, the southern police states would have collapsed. And because southerners knew how strongly many northerners opposed slavery, they were worried that if the federal government controlled the only militia, their slaves might be emancipated through military service.

Such possibilities troubled southern slaveholders like Thomas Jefferson, James Madison, George Mason (the owner of more than 300 slaves) and Patrick Henry. Jefferson and Henry opposed slavery on principle, and yet opposed freeing slaves. They were definitely “conflicted.”

Mason concurred:

“The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless, by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them [under this proposed Constitution] …”

Henry again:

“If the country be invaded, a state may go to war, but cannot suppress [slave] insurrections [under this new Constitution]. If there should happen an insurrection of slaves, the country cannot be said to be invaded. They cannot, therefore, suppress it without the interposition of Congress … Congress, and Congress only [under this new Constitution], can call forth the militia.”

His first draft of the Second Amendment had said: “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”

But Henry, Mason and other slaveholders wanted the southern states to be able to keep their slave control militias independent of the federal government. So Madison changed the word “country” to “state,” and redrafted the Second Amendment into its present form:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” – The Hypertexts

Conclusion

Mason had an expansive view of a militia that included “everyone.” However, Mason would have meant “citizens” in the same way that the ancient Athenians meant — which was only 12% of the Athenian population. Mason would certainly not include slaves in this definition; there was no question of women, older men, or children being part of a militia.

However, while Mason supported a citizen military, Mason’s highly influential views were typically moderated by those of other founders. As explained in the previous paragraph, this view of a militia being “everyone” (or everyone) is not echoed by other founding fathers or in documentation like the Federalist Papers.

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