The Founders' Second Amendment Page 14

  The colonists believed that Boston was only the first step and that the ministry’s intention was generally to disarm the Americans. Even before the above two declarations were adopted by the Continental Congress, patriot newspapers throughout the colonies had begun to publish the following intelligence from London: “It is reported, that on the landing of the General Officers, who have sailed for America, a proclamation will be published throughout the provinces inviting the Americans to deliver up their arms by a certain stipulated day; and that such of the colonists as are afterwards proved to carry arms shall be deemed rebels, and be punished accordingly.”133 Such reports could have only prompted more colonists to take up arms and join the resistance.

  Patriots throughout the colonies were inflamed by the facts and rumors being reported as taking place in Massachusetts. But the basic political value judgment that the individual should be armed for defense went unquestioned, even if it meant private seizure of the public arms. A letter from New York City dated April 24 noted:

  The city was alarmed yesterday by a report from the eastward, that the King’s troops had attacked the Massachusetts Bay people . . . . Towards evening they [the people] went and secured about half the city arms, a guard of 100 men I am told was to be placed at the city hall to secure the rest of the arms, and another hundred at the powder house, this was not done by the magistrates, but by the people . . . .

  Tuesday last [April 18], . . . pursuant to public notice, there was a meeting of near eight thousand of the inhabitants of the city, to consider of the measures to be pursued in the present situation of America. The business was opened with several eloquent and patriotic speeches, and the company unanimously agreed to associate, for the purpose of defending with Arms, their Property, Liberty, and Lives against all attempts to deprive them of them.134

  But the British had other ideas. Due to its geographic location, suggested a patriot, New York “is to be a place of arms, and provisions are to be provided there for supplies of the [British] army in New England.”135 To prevent such incursion, as reported elsewhere, “the inhabitants there are arming themselves, have shut up the port, and got the keys of the Custom-House.”136 It was claimed that “the whole city and province are subscribing an association, forming companies, and taking every method to defend our rights. The like spirit prevails in the province of New Jersey, where a large and well disciplined militia are now fit for action.” The New York General Committee resolved “that it be Recommended to every Inhabitant, to perfect himself in Military Discipline, and be provided with Arms, Accoutrements, and Ammunition, as by Law directed.”137 Similarly, the freeholders and inhabitants of Morris County, New Jersey, recommended “to the inhabitants of this country, capable of bearing arms, to provide themselves with arms and ammunition, to defend their country in case of any invasion.”138

  On May 10, Ethan Allen led his fellow Vermonters to capture Fort Ticonderoga. Ira Allen, his brother, described this feat of armed citizens as follows:

  Thus, in a few days, at the commencement of hostilities between the British and the Americans, two hundred undisciplined men, with small arms, without a single bayonet, made themselves masters of the garrisons of Ticonderoga, Crown Point, and St. Johns . . . to the honour of the Green Mountain Boys. It is to be remembered, that this was the first offensive part taken against Great Britain in the American revolution.139

  Trouble was brewing in both the northern and southern colonies. Gage informed Dartmouth: “This Province [Massachusetts,] Connecticut, and Rhode Island are in open Rebellion and I expect the same Accounts of New­Hampshire. They are arming at New-York and as we are told, in Philadelphia, and all the Southern Provinces . . . .”140

  On the night of April 21, 1775, Royal authorities secretly removed twenty barrels of gunpowder from the public magazine at Williamsburg, Virginia. They also stripped the public arms of their locks, making the guns unusable. The Virginia House of Burgesses complained to Governor Dunmore, who was also the military commander in chief, declaring:

  The inhabitants of this country, my Lord, could not be strangers to the many attempts in the northern colonies to disarm the people, and thereby deprive them of the only means of defending their lives and property. We know, from good authority, that the like measures were generally recommended by the Ministry, and that the export of pow[d]er from Great Britain had been prohibited. Judge then how very alarming a removal of the small stock which remained in the public magazine, for the defence of the country, and the stripping of the guns of their locks, must have been to any people, who had the smallest regard for their security.141

  Similarly, the mayor and other civil authorities—all “his majesty’s dutiful and loyal subjects”—protested to Governor Dunmore that “the inhabitants of this city were this morning exceedingly alarmed by a report that a large quantity of gun powder was in the preceding night, while they were sleeping in their beds, removed from the public magazine, in this city, and conveyed under an effort of marines, on board one of his majesty’s armed vessels, lying off a ferry on James River.” They asserted that “this magazine was erected at the public expense of this colony, and appreciated to the safe keeping of such ammunition as should be there lodged from time to time, for the protection and security of the country, by arming thereout such of the militia as might be necessary in cases of invasions and insurrections . . . .” They demanded that the powder be returned.142

  But Dunmore was well aware of the recent events in Massachusetts Bay and Virginia itself and had taken preemptive action. He responded orally to the above:

  That, hearing of an insurrection in a neighbouring county, he had removed the powder from the magazine, where he did not think it secure, to a place of perfect security; and that, upon his word and honour, whenever it was wanted on any insurrection, it should be delivered in half an hour; that he had removed it in the night time to prevent any alarm . . .; he was surprised to hear the people were under arms on this occasion, and that he should not think it prudent to put powder into their hands in such a situation.143

  Yet the governor could not muster the regular Williamsburg militia against the Hanover Independent Militia Company led by Patrick Henry, who, although unable to recapture the powder, had forced restitution for it.144 Lord Dunmore complained that Henry and his followers “have taken up arms and styling themselves an Independent Company, have . . . put themselves in a posture for war.”145 The governor soon saw it necessary to generalize this complaint in a letter to the British colonial minister: “Every County is now Arming a Company of men whom they call an independent Company for the avowed purpose of protecting their Committee, and to be employed against Government if occasion require.”146

  Before long, Henry and his militia struck back in Williamsburg. “Some people privately entered the public magazine in this city and took a great number of guns, cartouch boxes, swords, canteens, &c. for which his Excellency the Governor has ordered a diligent search to be made.”147

  Further south, North Carolina’s Colonial Governor Martin proclaimed against those “endeavouring to engage the People to subscribe papers obliging themselves to be prepared with Arms, to array themselves in companies, and to submit to the illegal and usurped authorities of Committees.”148 “The Inhabitants of this County on the Sea Coast,” he wrote on May 18, “are . . . arming men, electing officers and so forth. In this little town [Newburn] they are now actually endeavouring to form what they call independent Companies under my nose.”149

  In a widely published message to the committees of safety, Richard Caswell, William Hooper, and Joseph Hewes, North Carolina’s members of the Continental Congress, stated:

  It is the Right of every English Subject to be prepared with Weapons for his Defense. We conjure you . . . to form yourselves into a Militia . . . .

  Carefully preserve the small quantity of Gunpowder which you have amongst you, it will be the last Resource when every other Means of Safety fails you;

  Great-Britain has cut you off f
rom further supplies . . . . We cannot conclude without urging again to you the necessity of arming and instructing yourselves, to be in Readiness to defend yourselves against any Violence that may be exerted against your Persons and Properties.150

  Incidentally, the same issue of the North Carolina Gazette that published the above also reported an incident in which “a Demoniac being left in a Room, in which were 18 loaded Muskets,” shot three men and wounded another with a sword, “upon which the People present, without further Ceremony, shot him dead.”151 For the Founders, the right of the subject to be armed for defense of self and the community was necessary to suppress such tragedies—they never imagined a world in which they would be disarmed for the supposed benefit of preventing access to weapons by madmen.

  Governor Martin issued a “Fiery Proclamation” deploring the above message by Hooper, Hewes, and Caswell, “the preposterous enormity of which cannot be adequately described and abhor’d . . . [I]t proceeds upon these false and infamous assertions and forgeries to excite the people of North Carolina to usurp the prerogative of the Crown by forming a Militia and appointing officers thereto and finally to take up arms against the King and His Government.”152 Governor Martin warned that all “persons who hath or have presumed to array the Militia and to assemble men in Arms within this Province without my Commission or Authority have invaded His Majesty’s just and Royal Prerogative and violated the Laws of their Country to which they will be answerable for the same.”153

  The governor’s threats failed to deter the North Carolinians. Beginning with their personal right to have weapons for defense, they asserted a right to associate in militia companies independent of the government and to use those arms against despotism. A typical committee of safety resolution of the time referred to “the painful necessity of having recourse to Arms for the preservation of those rights and Liberties which the principles of our Constitution and the Laws of God, Nature, and Nations have made it our duty to defend.”154 This reference to “our Constitution” meant the colonial charter that protected all of the rights of Englishmen.

  On November 9, Joseph Hewes wrote from Philadelphia that arms and ammunition “are very scarce throughout all the Colonies, I find on enquiry that neither can be got here, all the Gunsmiths in the Province are engaged and cannot make Arms near so fast as they are wanted.”155 He reported that “I have furnished myself with a good musket and Bayonet.”156 Yet arms remained scarce, due to the British embargo. “Americans ought to become industrious in making those articles at home, every Family should make saltpetre, every Province have powder Mills and every colony encourage the making of Arms.”157

  The pattern was the same elsewhere. The Address and Declaration of the Provincial Congress of South Carolina implored, “solely for the Preservation and in Defence of our Lives, Liberties, and Properties we have been impelled to associate, and to take up Arms . . . Our taking up Arms is the Result of dire Necessity, and in compliance with the first Law of Nature.”158

  The epoch was expressed perhaps best in a letter from a Virginia gentleman to a friend in Scotland dated September 1 as follows:

  We are all in arms, exercising and training old and young to the use of the gun. No person goes abroad without his sword, or gun, or pistols. . . . Every plain is full of armed men, who all wear a hunting shirt, on the left breast of which are sewed, in very legible letters, “Liberty or Death.”159

  By the end of 1775, the British were destroying whole towns for refusing to surrender their arms. Admiral Graves ordered the burning of all seaports north of Boston.160 In Falmouth (now Portland), Maine, a town committee went on board a British man-o-war to try to save the town. “Captain [Henry] Mowat informed the Committee at Falmouth, there had arrived orders from England about ten days since, to burn all the sea port towns on the continent, that would not lay down and deliver up their arms, and give hostages for their future good behaviour . . . .” They promised to spare the town if “we would send off four carriage guns, deliver up our small arms, ammunition, & c. and send four gentleman of the town as hostages, which the town could not do.” So the British ship fired on Falmouth all day and destroyed it. General George Washington personally requested newspapers to publish this information so that the colonists could see the lengths to which the British were willing to go.161

  Further details of the above incident were set forth in a letter dated October 21, 1775, concerning the plight of towns along the Massachusetts coast as follows:

  An express came to general Washington, yesterday from Portsmouth, with advice that a naval force from Boston appeared off Falmouth, Casco Bay, and demanded of the inhabitants the surrender of their arms and hostages for their future good behaviour. He offered, upon this delivering up part of their arms the same evening, to allow them to the next day to consider of the demands. They accordingly delivered him eight muskets. The next day a very heavy firing was heard upon Falmouth. The commander of the fleet showed his orders to the committee, which were to destroy the town, and Portsmouth, in case they should refuse to comply with the demand. To me it appears highly probably that Newport and the other sea-port towns, may soon expect a similar treatment.162

  These experiences demonstrate how the encroachments of the Crown on the liberties of the subjects would later influence adoption of the Bill of Rights, particularly the Second Amendment. The mere possibility in 1768 that the Crown’s authorities would seize arms gave rise to a robust philosophical defense of what was considered a fundamental right. When in 1774 the rulers of Boston dared even to consider disarming the inhabitants, thousands of armed citizens felt justified in assembling and marching into town to demonstrate their opposition. The Founders considered a ban on importation of firearms and ammunition to violate the right to obtain and possess arms. Imposition of martial law only exasperated the belief that they must keep and bear arms for parity against an oppressive standing army.

  The patriots’ aversion to the governmental policy of searching persons, places, and houses and seizing firearms demonstrates the close connection between the Second Amendment right to keep arms and the Fourth Amendment prohibition on warrantless searches and seizures. Gage’s trickery in inducing the inhabitants to turn in their arms for “temporary safekeeping” and then in seizing those arms, never to be returned, gave rise to the traditional American skepticism toward benevolent rulers who promise only limited infringements on their rights.

  The dogs of war were now unleashed. For the Crown, this was an imperial war to be waged by a standing army and mercenaries against a colonial populace. But for the Americans, this was a revolutionary war of the armed people for independence.

  Of Revolution and Rights

  CHAPTER 5

  “Times That Try Men’s Souls”

  WE HOLD THESE TRUTHS to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.” These immortal words of the Declaration of Independence, written by Thomas Jefferson and signed by the members of the Continental Congress on July 4, 1776, expressed a political philosophy based on the right of the people to assert and reclaim their own sovereignty over an oppressive government.1 As the Declaration proceeds to aver:

  That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

  To be sure, governments should not be changed “for light and transient causes,” and the people “are more disposed to suffer, while evils are sufferable,” than to abolish the government. “But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is
their right, it is their duty, to throw off such government, and to provide new guards for their future security.” Inherent in this philosophy is the right of the people to keep and bear arms in order that they may do just that. Indeed, ideally the mere existence of this right provides the kind of balance in a polity that precludes the development of despotism and thus the need “to throw off such government.”

  Noting that the colonists had patiently suffered, the Declaration proclaimed: “The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states.” A list of grievances, some very general and others narrow, follow. Several charges relate to the violation of the right of representation in legislative bodies, interference with beneficial lawmaking, and causing judges to be dependent on the king’s will alone. The Crown had sent both bureaucrats and soldiers to oppress the populace:

  He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance.

  He has kept among us, in times of peace, standing armies without the consent of our legislature.

  He has affected to render the military independent of and superior to civil power.

  Several further charges particularized the above grievances concerning economic and military exploitation. The Declaration alleged that the king caused enactment of the following “pretended legislation”: