(Click for larger view) Image of Second Militia Act of 1792 Source: "Laws of the United States," Columbian Centinel, June 2, 1792
As part of its Mar. 2010 reform of the health care insurance industry, the Patient Protection and Affordable Care Act (PPACA) (2.2 MB) , also known as "Obamacare," contained a mandate that most individuals must have health insurance or face a fine.
Many people say the insurance mandate in the 2010 PPACA was the first federal mandate for citizens to acquire a private product.
However, others point to the Second Militia Act of 1792(5 MB) , signed by President George Washington on May 8, 1792, as the first such mandate since it required all men conscripted into mandatory militia service to acquire a gun, ammunition, and related military items at their own expense.
In a lawsuit filed against the PPACA, Florida v. Sebelius (187 KB) , the State of Florida and 12 other states argued that the mandate "represents an unprecedented encroachment on the liberty of individuals living in the Plaintiffs' respective states, by mandating that all citizens and legal residents of the United States have qualifying healthcare coverage or pay a tax penalty... By imposing such a mandate, the Act exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution."
On Mar. 27, 2012, during the second day of US Supreme Court hearings over the PPACA, two of the amicus briefs filed in support of the constitutionality of the PPACA referenced the Second Militia Act of 1792 as an example of how the federal government had legally required individuals to acquire a private product.
II. Second Militia Act of 1792
Background: The first Militia Act(2.5 MB) , signed May 2, 1792, provided the President of the United States the power to "call forth" the militia "whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe."
On May 8, 1792, President George Washington signed the Second Militia Act of 1792(5 MB) into law after it passed in the House of Representatives and the Senate. The act required that "every free able-bodied white male citizen" between the ages of 18-45 "shall severally and respectively be enrolled in the militia." Government employees, private mariners, and any person exempted by the individual states, were exempt from mandatory militia service. This act contained the provisions requiring that the conscripted militia members must obtain a firearm and other items related to militia service.
Text of the Mandate from the Second Militia Act of 1792: "That 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, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service..."
Financial Burden of Acquiring a Firearm: The financial burden to acquire a firearm and other necessary militia gear was placed on the individual. In Nov. 1792, during the congress following the passage of the Militia Acts, Congressman William Vans Murray (Federalist-MD) argued that the mandate was an unfair financial burden, as printed in the Annals of Congress(459 KB): "the injunctions of the law, in this particular, imposed equal burdens, on shoulders infinitely disproportioned as to their capacity to sustain them; it enjoins duties on the major part of the Militia, of such a nature, as renders the law totally impracticable. A man not worth one farthing, is subjected to the same expense with one who may be worth ten thousand pounds a year; the inequality, evident in the operation of such a requisition, is a glaring instance of injustice." Only 14 members of congress supported Mr. Murray's argument. His motion to amend the Militia Act was defeated.
Legal Challenges to Second Militia Act of 1792: ProCon.org was unable to locate any information about legal challenges to the Second Militia Act of 1792. On Apr. 27, 2012 we contacted Wendy K. Mariner, JD, Edward R. Utley Professor of Health Law, Bioethics & Human Rights at Boston University, who stated that she didn't believe the Second Militia Act was ever challenged in court. Professor Mariner was a leading author of an amicus brief submitted by 104 health law professors(298 KB) to the Supreme Court supporting the minimum insurance coverage provision (individual mandate) of the Patient Protection and Affordable Care Act (PPACA). Other legal scholars have pointed out that the principle of judicial review of congressional acts did not exist until the 1803 Supreme Court case Marbury v. Madison(50 KB) which set the historic legal precedent that federal courts can void acts of Congress they find to be unconstitutional.
III. Does the Second Militia Act of 1792 provide legal precedent for the individual health insurance mandate?
Akhil Reed Amar, JD, Sterling Professor of Law and Political Science at Yale University, stated the following in his Mar. 29, 2012 article "How To Defend Obamacare," available at www.slate.com:
Richard A. Epstein, LLB, Laurence A. Tisch Professor of Law at New York University, stated the following in his Apr. 3, 2012 article "Justice Kennedy's Million Dollar Question," available at www.hoover.org:
"The Constitution expressly gives Congress the power to 'Regulate commerce... among the several states.' Here, we have a genuine regulation - both the micro-mandate/penalty/tax and the larger regulatory regime of which it is an integral part. We have commerce under any reading of the word. Insurance is a purely commercial or economic question about who pays whom... The problem of health care creates spillover costs that cross state lines, problems that result in some states in effect imposing costs on other states or bearing costs that properly belong to other states...
[T]his law [the individual mandate to purchase health insurance] is hardly unprecedented. The Militia Act of 1792 had a similar mandate, obliging Founding-era Americans to privately procure muskets, ammo, pouches, and so on. George Washington signed onto that law. And no one at the time said that mandates such as this were somehow intrinsically improper regulatory tools...
If a mandate is a permissible regulation of a well-regulated militia, it is an equally permissible regulation of interstate commerce."
"100+ law professors bolster their claim of the sweeping historical application of the Commerce Clause with examples that are so far off point that they are bewildering. They refer to the Militia Act of 1792 in order to point out that the action/inaction distinction is no part of our Commerce Clause jurisprudence...
Given their obsession with the Commerce Clause, these overeager professors never bothered to inform their readers that the Militia Act of 1792 was enacted pursuant to Congress’s powers under the militia clauses of Article I, authorizing it:
'To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.'
Surely, under that mandate, Congress can order a member of a militia to buy a gun... the Second Militia Act of 1792 is a pointless diversion."
IV. Amicus Briefs in Obamacare Supreme Court Case Mentioning the Second Militia Act
Briefs for Law Professors Barry Friedman and Matthew Adler, et al., In Support of Petitioners and Reversal of the Minimum Coverage Provision:
"History makes clear that individual mandates can be 'necessary and proper' means of effectuating enumerated powers. In the Republic’s earliest days, Congress discharged its authority to 'provide for organizing, arming, and disciplining, the Militia,' U.S. Const. art. I, § 8, cl. 16, by compelling activity: It mandated militiamen to obtain particular arms and supplies. See Act of May 8, 1792, ch. 33, § 1, 1 Stat. 271, 271-272 (persons liable for service must provide 'a good musket or firelock, a sufficient bayonet and belt, two spare flints,' and ammunition); id. § 4, 1 Stat. at 272-273 (horses and uniforms). Congress has also prohibited inactivity by requiring people to respond to the census, 13 U.S.C. § 221(a)-(b), report for jury duty, 28 U.S.C. § 1866(g), and register for selective service, 50 App. U.S.C. § 453. Congress thus has a long history of compelling conduct in service of other enumerated powers."
Briefs for Senate Majority Leader Harry Reid, House Democratic Leader Nancy Pelosi and Congressional Leaders and Heads of Committees of Relevant Jurisdictions in Support of Petitioners Regarding the Minimum Coverage Provision
"[T]he claim that there is anything novel about the MCR (minimum coverage requirement) because it obligates citizens to take action or denies them the 'right' to be left alone is wrong. Every time the federal government requires someone to move in order to build an interstate highway, Congress is exercising the commerce power to require action by individuals who might prefer inactivity to compensation for the taking. Congress has put obligations on individuals at least since the Militia Act of 1792."