Did the Militia Act of 1792 set a precedent for Obama's health insurance mandate?

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Dec. 16 2010 4:57 PM

Of Muskets and Health Care

Did the Militia Act of 1792 set a precedent for Obama's health insurance mandate?

The first musket manufactured inside the US at Springfield Armory, the 1795.
An antique musket.

A federal judge in Virginia has declared unconstitutional the health care provision requiring many Americans to purchase insurance. On Monday, Judge Henry E. Hudson ruled that while Congress may regulate interstate commerce, it cannot force citizens to buy goods (like health insurance) on the private market. Some of the law's defenders have argued that Congress did just that when it passed the Militia Act of 1792, which compelled all "able-bodied" white men of certain ages to have a battle-ready musket or rifle. But that law hails from an era in which the United States were still young and our politicians wore white wigs. How good of a defense, really, is the Militia Act for the insurance mandate?

It's pretty flimsy. The constitutionality of the insurance mandate relies on the so-called Commerce Clause, which grants Congress the power "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes." The Militia Act (actually two bills passed within a week of one another in May 1792), on the other hand, depends on the Militia Clause, which authorizes the government to "provide for organizing, arming, and disciplining, the militia." Because the two mandates have such different foundations, the constitutionality of one is essentially independent of the other.

Separate clauses aside, the Militia Act of 1792 would still be poor precedent for the insurance mandate, because Congress never enforced, or even meant to enforce, the law at the federal level. Lost in the health-care inflected discussion of the bill is its initial purpose: To standardize state militias and to authorize the president to call them into action. The government expected each state to achieve standardization through locally issued regulations, and to handle the gun-toting provision independently. As it happens, the state-level requirements and penalties were onerous, especially for poorer men. The standard-issue musket, which was too heavy and high-caliber to be useful off the battlefield (say, for hunting), cost about $13—several weeks' wages for the average Joe, who earned less than a dollar a day. Men who did not comply were fined as much as $12 (the penalty in New York), and those who didn't pay the fine could be imprisoned for debt.

Not long after the Militia Act passed, it came under increasing criticism for being (on the one hand) unfair and (on the other) too weak. Wealthy men could afford to pay the fines, avoiding both militia duty and prison, but poor and working-class men could not. The bill had also been watered down as it crept through Congress; it didn't create any standards for militia organization, tactics, or training, as its original proponents had wanted. The resulting aggregation of state militias was fairly ineffective. Though federally commanded state militias helped George Washington quell the Whiskey Rebellion in 1794, their poor performance in the War of 1812 convinced many politicians that the government needed to rethink its military strategy. Starting in 1840, with Massachusetts, states began repealing their compulsory militias or simply letting those militias decay, favoring volunteer organizations instead.

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Explainer thanks Barry Friedman of New York University, Richard H. Kohn of the University of North Carolina at Chapel Hill, and Kevin Sweeney of Amherst College .

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