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  The Founders’ Second Amendment

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  The Founders’

  Second Amendment

  _____________

  ORIGINS OF THE RIGHT TO BEAR ARMS

  _____________

  Stephen P. Halbrook

  Ivan R. Dee

  CHICAGO 2008

  PUBLISHED IN ASSOCIATION WITH THE INDEPENDENT INSTITUTE

  THE FOUNDERS’ SECOND AMENDMENT.

  Copyright © 2008 by Stephen P. Halbrook.

  All rights reserved, including the right to reproduce this book or portions thereof in any form. For information, address: Ivan R. Dee, Publisher, 1332 North Halsted Street, Chicago 60622. Manufactured in the United Scares of America and printed on acid-free paper.

  www.ivanrdee.com

  Library of Congress Cataloging-in-Publication Data:

  Halbrook, Stephen P.

  The founders’ Second Amendment : origins of the right to bear arms / Stephen P. Halbrook.

  p. cm.

  Includes bibliographical references and index.

  ISBN-13: 978-1-56663-792-3 (cloth : acid-free paper)

  ISBN-10: 1-56663-792-9 (cloth : acid-free paper)

  1. United States. Constitution. 2nd Amendment—History 2. Firearms—Law and legislation—United States—History. 3. Constitutional history—United States. I. Title.

  KF3941.H349 2008a

  344.7305’33—dc22 2008001451

  Contents

  Preface

  Introduction

  DISARMING THE COLONISTS

  1 “The Inhabitants to Be Disarmed”

  2 From the Tea Party to the Powder Alarm

  3 The Arms Embargo and Search and Seizure at the Neck

  4 A Shot Heard ’Round the World and “a Cruel Act of Perfidy”

  OF REVOLUTION AND RIGHTS

  5 “Times That Try Men’s Souls”

  6 “That the People Have a Right”

  7 “A Musket to Defend These Rights”

  THE CONSTITUTION AND COMPROMISE

  8 A Constitution with No Bill of Rights?

  9 The “Dissent of the Minority”

  10 Virginia Tips the Scales

  11 “A Majority That Is Irresistible”

  “TO KEEP AND BEAR THEIR PRIVATE ARMS”

  12 Mr. Madison’s Amendments

  13 The Bill of Rights in the States

  14 The Great Militia Debate

  15 Old Founders Never Die, They Just Fade Away

  CONCLUSION

  16 What Does the Second Amendment Say?

  Notes

  A Note on the Author

  Preface

  THIS IS THE FIRST book-length account of the nature of the Second Amendment right of the people to keep and bear arms during the generation of the Founders of the American republic. This period spans from the last years of British rule and the American Revolution through the adoption of the Constitution and Bill of Rights and the passing away of the Founders’ generation. Those years began in 1768, when Redcoats first occupied Boston, and ended when Thomas Jefferson and Jo
hn Adams died on July 4, 1826.

  “Marshaling an impressive array of historical evidence,” writes Supreme Court Justice Clarence Thomas, “a growing body of scholarly commentary indicates that the ’right to keep and bear arms’ is, as the Amendment’s text suggests, a personal right.”1 He cited two books, Joyce Lee Malcolm’s To Keep and Bear Arms: The Origins of an Anglo-American Right—the preeminent study of the English beginnings of the right—and this author’s That Every Man Be Armed: The Evolution of a Constitutional Right—which traces the right from its Greco-Roman origins through modern American jurisprudence.

  Few contributions to Second Amendment scholarship existed until the 1980s. Today, journal articles on the amendment abound.2 This author also published books on how the right to keep and bear arms was perceived in the original thirteen states3 and on the treatment of this right during Reconstruction as a civil right won by freedmen.4

  Yet perhaps the most important piece of the puzzle is missing—a truly comprehensive treatment of the views of the Founders, from the pre­Revolutionary days through the passing of that generation. This book seeks to fill that void.5

  It would be difficult to acknowledge every person who assisted in preparation of this work. The author, while solely responsible for any deficiencies, thanks the many scholars over the years who, in one way or another, contributed toward a critique of the theses of this book. Special thanks for their critical perusal of the manuscript are due to Forrest McDonald, Distinguished University Professor, University of Alabama; Joyce Lee Malcolm, Professor of Law, George Mason University; Nelson Lund, Patrick Henry Professor of Constitutional Law and the Second Amendment, George Mason University; and Alexander Tabarrok, Research Director, the Independent Institute. There were several anonymous peer reviewers whose challenges, on points great and small, invariably made this a better book. Also helpful, in many contexts, were the contributions of William Van Alstyne, David Kopel, Robert Dowlet, Richard Gardiner, Don Kates, David Caplan, George Knight, Eugene Volokh, Akhil Amar, Robert Cottrol, and Glenn Reynolds.

  Appreciation must also be expressed to those who pored through obscure eighteenth-century documents or otherwise assisted in the research for this book, including Heather Barry, David Fischer, Patrick Halbrook, Oliver Harriehausen, Jordan Jackson, and Suzanne Anglewicz. Editorial assistance was provided by Lisa Halbrook and Jennifer Gordon. For preparation of the manuscript, the assistance of Gail Saari, Megan Whitson, and Alyson Nolan must be acknowledged. Special thanks are due to David J. Theroux, President of the Independent Institute, for tirelessly sponsoring and moving the publication of this book forward.

  The Founders’ Second Amendment

  Introduction

  THE FOUNDERS of the American republic sought to guarantee what they termed “the right of the people to keep and bear arms” as a fundamental liberty. Hotly debated and sometimes denigrated today, the Second Amendment to the U.S. Constitution somewhere along the way became a controversial enigma. But what did it mean to the Founders? What perceived violations of their rights prompted them to insert this provision into the Bill of Rights? What was the history of how this right found its way into that esteemed charter of liberties?

  The amendment states: “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.” A long-standing interpretation is that individuals have a right to possess and carry firearms and that an armed populace constitutes a militia that secures a free country. In recent decades the view has become prominent that the Amendment guarantees a“collective right”of the states to maintain militias free of federal control, or, in a more sophisticated version, that individuals have a“right”to bear arms in militia service, but not otherwise.

  This work seeks to present the views of the Founders who actually created the Second Amendment. It is based on their own words as found in newspapers, correspondence, debates, and resolutions. Generous quotations from the Founders are used to allow them to speak for themselves, thereby avoiding the appearance of re-characterization of their views.

  The“Founders”were the generation of Americans in the eighteenth century who suffered in the final stages of British colonialism, fought the Revolution and won independence, debated and adopted the Constitution and Bill of Rights, and established the republic. The members of that generation passed away by the early nineteenth century, but their constitutional legacy is, if not immortal, a singular triumph in the history of human freedom.

  The story begins in 1768 when the Redcoats are sailing to occupy Boston, and the patriots are spreading the alarm that, among other deprivations, the inhabitants are to be disarmed. The presence of a standing army quartered within the population, Chapter 1 shows, led the colonists vigorously to assert their rights as Englishmen. The tragedy of the Boston Massacre only solidified the patriots’ commitment to protect themselves, by arms if need be.

  From the Boston Tea Party through the Powder Alarm, a period taking place in the months just before through just after 1774, repressive measures against the increasingly troublesome Americans sharply escalated. The Royalist-imposed government in Boston—the radicals called it “the Divan” after an institution of Turkish despotism—debated a prohibition on all private arms. General Thomas Gage’s troops seized the gunpowder in the powder houses, cutting off the supply of that essential commodity. Searches and seizures, including alleged entrapment, were instituted against those attempting to obtain and distribute arms. Chapter 2 describes these events.

  Well aware that the colonists were making every effort to arm themselves, George III sought to cut off all arms and ammunition at the source, by prohibiting the export of these articles from Britain and elsewhere (particularly Holland) and the import thereof into the colonies. As Chapter 3 recounts, this arms embargo was combined with stepped-up search-and-seizure operations in Boston, particularly at the Neck, the narrow strip of land where patriots were smuggling large quantities of munitions to the countryside.

  The “shot heard ’round the world” at Lexington and Concord in 1775 involved the Redcoats’ attempted seizure of arms being hoarded by militiamen and the repulse of these troops by the local citizens armed with their own muskets and sporting arms. This led General Gage, as detailed in Chapter 4, to impose the confiscation of all firearms from Boston’s civilians, under the promise that those in compliance could depart the besieged city. After seizing the arms,“the perfidious Gage” held the townsfolk as hostages.

  During these years, history was not standing still in the other colonies. However, the patriots in such colonies as Virginia, Pennsylvania, and New York were being radicalized because of events in Boston, and the British authorities saw Boston as the root of all evil in the colonies. Accordingly, the above chapters focus on Boston, where the patriot—British conflict spiraled out of control. The Boston experience showed that many colonists were armed or sought to obtain arms and that Gage’s successful and unsuccessful attempts to disarm them constituted yet more proof of the Crown’s objective to destroy their rights as Englishmen.

  The above were key events that led the Founders to adopt the Second Amendment. A tyrannical government supported by a standing army had sought to disarm a people through various artifices. It took these repressive measures against both citizens organized as militia and against citizens as individuals. The patriots then exercised their right to keep and bear arms to protect both this right and their many other rights.

  The Revolution had now been sparked. Its philosophy, as expressed in the Declaration of Independence, was that the people must endure some amount of injustice, but they may wage armed resistance when injustice becomes tyranny. The ramifications of this republican doctrine are presented in Chapter 5.

  Beginning in 1776 and continuing during the War for Independence, the states took measures to provide for their own governance. Virginia was the first state to adopt a declaration of rights, which included the admonition for “a well regulated
Militia, composed of the Body of the People.” And Pennsylvania was the first to declare that “the people have a right to bear arms for the defence of themselves, and the state.” These principles were held dear in all of the states, as Chapters 6 and 7 detail, without regard to whether they adopted a bill of rights. Skeptics deemed it unnecessary to list the many rights of mankind in a formal instrument.

  With independence won and rights vindicated, the next phase of the Second Amendment’s saga begins with the drafting of the Constitution at the Philadelphia convention in 1787. Its lack of a bill of rights was defended in The Federalist Papers and attacked by the antifederalists. But both sides agreed, as explained in Chapter 8, with the ideal of an armed populace.

  The proposed constitution was then considered by the state conventions, largely in 1788. In the initial phase, those demanding a bill of rights protecting free speech or any other right could not muster a majority in any convention. However, the Pennsylvania minority proposed that “the people have a right to bear arms” to defend themselves, the state, and the United States, as well as for hunting. In the Massachusetts convention, Samuel Adams proposed that “peaceable citizens” have a right to keep “their own arms.” Finally, as Chapter 9 explains, the New Hampshire convention became the first to propose a bill of rights, including that “Congress shall never disarm any citizen” unless in rebellion.

  It was now Virginia’s turn. Patrick Henry argued “that every man be armed,” and George Mason drafted a declaration of rights, including a guarantee of “the right of the people to keep and bear arms.” James Madison and his federalist colleagues reached the great compromise with the antifederalists: Virginia would ratify the Constitution without a bill of rights, but would propose one and urge its prompt adoption. How Virginia tipped the scale in favor of a declaration of rights is described in Chapter 10.

  In the remaining state conventions, the majority in favor of a bill of rights had become irresistible. New York demanded one, and North Carolina refused to ratify the Constitution until a bill of rights had been introduced in Congress. Chapter 11 explains these developments, which included significant mention of the right to bear arms.