Firearms Law Workshop Mini-Symposium, Part V: The Use of the Second Amendment to Reject Conscription

In 2019, national conscription, or the draft, no longer feels like the ominous threat to civil liberties that it once did. Today, American male citizens must still register at 18 and there are existing proposals and a national commission considering expanding the draft to include women. Yet, the first and most significant fight over the constitutionality of conscription occurred during the American Civil War. Constitutional conservatives believed the power to draft would lead to a consolidated, centralized and despotic national government. Looking to preserve the original structure of federalism, constitutional conservatives saw the Second Amendment as an additional bulwark against the expansion of federal power. However, the use of the Second Amendment was primarily used by lawyers and a handful of influential legally-trained politicians to bolster their core objections to conscription and never became central to constitutional challenges in the wider, popular debates.

After the act was passed on March 3rd, several Democratic lawyers wrote pamphlets attacking the unconstitutionality of national conscription. According to New York attorney Dennis A. Mahoney, the Conscription Act violated the Second Amendment by putting the state militias “out of existence” and turning American citizens into conscripts instead of subjects of the militia. The federal government only had the right to call out the state militias in accordance with state laws but had no right to call people out “against their will” to perform military service in any manner outside of what conformed to the Constitution. Fellow New York attorney John Joseph Freedman agreed. He felt that the Second Amendment only confirmed the restrictions the framers placed upon the Article I powers over the militia. The amendment was added for the purpose of further restricting Congress’s powers over the militia.

Once the question of the constitutionality of the Conscription Act reached the courts in the summer of 1863, conservative lawyers looked to the Second Amendment to act as an additional safeguard for antebellum federalism but only two judges agreed. In New York City, Judge John McCunn, a Democratic judge on the city court, ruled that the entire law was “clearly unconstitutional” and violated the rights of the people. He thought that it not only exceeded the Article I powers granted to Congress, but both the Second Amendment and the “Commander-in-Chief” clause of the Article II did not authorize it. But because he was a city judge, McCunn found his decision quickly reversed by the New York Supreme Court on jurisdictional grounds.

The most important legal challenge to the Conscription Act came during the fall of 1863 before the Pennsylvania Supreme Court in the case of Kneedler v. Lane. The lengthy complaint and interrogatories filed by the three plaintiffs did not mention the Second Amendment. However, in oral argument, Democratic attorney George Wharton used the Second Amendment to support the proposition that if Congress could conscript every male citizen, the reserved powers of the states were nullified and state forces would be “absorbed” by the federal army. Wharton maintained that the Second Amendment’s first clause ensured a militia system that relied upon able-bodied citizens to render military service in emergencies for defensive warfare. When three of the five judges voted to strike down the Conscription Act in November, only Judge James Thompson’s concurring opinion referred to the Second Amendment as an additional protection for antebellum federalism. Thompson wrote that the Second Amendment reflected the apprehension of the framers over such a “dubious power” as the power of the federal government to coercively conscript.

Privately, Chief Justice Roger Taney agreed with McCunn and Thompson, writing an unpublished opinion in the spring finding the Conscription Act unconstitutional. Taney understood the Second Amendment to reflect the “sharp distinction” between the militia and regular army, noting that the militia was composed of state citizens who “retain all their rights and privileges as citizens who when called into service by the United States are not to be fused into one body–nor confounded with the Army of the United States, but called out as the militia.”

However, the opinions of these Democratic lawyers and judges did not carry the day. Just over two months after Kneedler was decided, with one member of the majority gone, the court reversed the injunction. By November 1864, Taney was dead. By the time conscription reached the Supreme Court in 1918, it was upheld unanimously and the role of the Second Amendment in protecting state militia power was largely forgotten.

[Ed. Note: This post is part of a series on the papers presented at the Center’s first Firearms Law Works-in-Progress Workshop on August 2, 2019.]