The Founders' Second Amendment Read online

  It is not surprising that these patriots would frame the Declaration of Rights with the provision: “That the people have a right to bear arms for the defence of themselves, and the state; and as standing armies in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by the civil power.”91 While the declaration of a right to bear arms to defend the state against the established Royal government was more radical, the Framers did not overlook the less disputed right to bear arms for self-defense.

  Recognition of the people’s right to bear arms “for the defence of themselves” meant that individuals were entitled to carry arms for personal protection. Use of the terms “the people” and “themselves” did not mean that arms could be borne only in groups organized by the state and only to defend the people in some collective sense. Bearing arms to defend “the state” meant defense of the Commonwealth and its people as a whole. If “themselves” also meant the collective body and not individuals, it would be redundant to “the state.”92

  The term “bear arms” was not limited to bearing arms in a military force. Bearing arms for self-defense is “a right” of “the people,” while bearing arms in a military unit is either voluntary or compulsory but is not considered “a right.” Bearing arms was not limited to the militia, and indeed, the militia was not mentioned in the Declaration of Rights, but was the subject of another article of the Constitution. Declaring in the same sentence that standing armies may be dangerous to liberty and that the military must be subordinate to the civil power did not negate that “the people have a right to bear arms for the defence of themselves ....”

  The declaration of a right to bear arms to defend self and state appears not to have been disputed in the convention or in the press. While some parts of the declaration were highly controversial, no objections were voiced in the newspapers from the time the declaration was first published.93 By contrast, freedom of religion sparked controversy. When Benjamin Franklin revised the Declaration of Rights, he suggested no change in the right to bear arms clause yet unsuccessfully opposed the profession of faith required for assemblymen.94 Newspaper attacks on the religious guarantees and certain other matters were extreme and persistent, but bearing arms was not questioned.95

  One writer saw the Declaration of Rights as “equal to any thing of the kind now extant in the various governments that we know in the world.”96 “The Magna Carta or the Great Charter of Britain, and the Bill of Rights exhibited at the Revolution, are not touched, nor allowed to be touched, by their Parliaments, and we at this time blame them, and bear arms against them, because they have deprived us, and still attempt to deprive us, of the privileges of that Constitution.”97 “Casa” wrote: “The Bill of Rights should always include the natural rights of every freeman, and the essential principals of free government .... This bill should be unalterable. The least violation of any part of it, whether by legislature—the courts of law—or the people, should always be punished as high treason against the state.”98

  The article in the Constitution on the militia provided in part: “The freemen of this commonwealth and their sons shall be trained and armed for its defence, under such regulations, restrictions and exceptions as the general assembly shall by law direct.”99 This met with some sarcasm in satire on the Constitution which stated:

  In section the fifth—the freemen shall be trained and armed for their defence, and the militia shall elect their officers, & c. Oh, how I am transported at the velocity of the mental operations of these geniuses! They ought not to be compared to any thing but leaden bullets flying from the muzzles of rifles, hot, heavy, rapid, and yet twisting to their marks.100

  It is worth recalling that, years before, Benjamin Franklin had devised a plan “for organizing men willing to bear arms into voluntary militia associations.”101 Its object was “our mutual Defence and Security, and for the Security of our Wives, Children and Estates, and the Preservations of the Person and Estates of others, our Neighbours and Fellow Subjects.” Its members, who would elect their officers, would “provide ourselves with a good Firelock, Cartouch Box, and at least twelve Charges of Powder and Ball, ... to be kept always in our respective Dwellings, in Readiness, and good Order.”102 Franklin explained, “The general Word Firelock is used (rather than Musket, which is the Name of a particular kind of Gun) most People having a Firelock of some kind or other already in their Hands.”103 This confirms the widespread ownership of arms.

  Providently, another section of the Constitution provided: “The inhabitants of this state shall have liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands not inclosed.”104 This provision was criticized in the most comprehensive attack on the new constitution, adopted by an assembly of dissidents, which devoted most of its attention to issues such as “the Christian religion is not treated with proper respect.”105 A minor objection was “that several regulations improper to betaken notice of therein, are mentioned in the said Constitution .... Fishing, fowling, and hunting.”106

  Much more was at stake than the right to hunt, “Remarks on the Resolves” replied. Under English law, game belongs to the king, who grants rights to lords of manors. From this privilege stemmed deprivation of the right to keep and carry guns:

  In order to prevent poachers, as they are called, from invading this aristocratical prerogative, the possession of hunting dogs, snares, nets, and other engines by unprivileged persons, has been forbidden, and, under pretence of the last words, guns have been seized. And though this was not legal, as guns are not engines appropriated to kill game, yet if a witness can be found to attest before a Justice that a gun has been rhus used, the penalty is five pounds, or three months imprisonment fall on the accused.

  The prosecutors are generally fox-hunters, and if the Justices are such, alas, the culprit has no chance of escaping punishment though the evidence be slender! Thus penal laws, and trial without juries, are multiplied on a trivial subject, and the freeholders of moderate estates deprived of a natural right. Nor is this all; the body of the people kept from the use of guns are utterly ignorant of the arms of modern war, and the kingdom effectually disarmed, except of the standing force .... Is any thing like this desired in Pennsylvania?107

  The above remarks combine apparent knowledge about how England’s game laws were actually enforced with the observations of Sir William Blackstone, who wrote that “a reason oftener meant, than avowed, by the makers of forest or game laws” was “for preventing of popular insurrections and resistance to the government, by disarming the bulk of the people.”108 European feudalism was founded on conquest, and the rulers wanted to keep the subjects “in as low a condition as possible, and especially to prohibit them the use of arms. Nothing could do this more effectually than a prohibition of hunting and sporting ....”109 Blackstone proceeded to detail the property qualifications and penalties set forth in the game laws that were alluded to by the above writer.

  Thomas Paine had lambasted gun seizures under English game law based on lack of sufficient wealth in a poem published in 1775 in Pennsylvania Magazine. Based on a true story about three judges who hung a farmer’s dog, the poem referred to the requirement that one must have an annual income of at least one hundred pounds to hunt:

  Each knew by instinct when and where

  A farmer caught or killed a hare;

  Could tell if any man had got

  On hundred pounds per ann. or not;

  Or what was greater could divine

  If it was only ninety-nine.

  For when the hundred wanted one,

  They rook away the owner’s gun.110

  While modeled on the Virginia Declaration, the Pennsylvania Declaration of Rights made significant improvements. The rights of assembly and petition, and an unprecedented recognition of religious liberty, were included only in the latter.111 Although Virginia recognized that a free state requires “a well regulate
d Militia, composed of the Body of the People, trained to Arms,”112 Pennsylvania more explicitly provided “that the people have a right to bear arms for the defence of themselves, and the state.”113 As the chief authority on the first Pennsylvania constitution concludes, “the Declaration of Rights was the true expression of the ideals of the American Colonists, and the guarantees contained therein were the product of long and severe experience.”114

  Years later, Thomas Paine would write of Pennsylvania’s 1776 Declaration: “By this mutual compact, the citizens of a republic put it out of their power, that is, they renounce, as detestable, the power of exercising, at any future time any species of despotism over each other ....” Paine proceeded to quote the Declaration in full.115

  The same provincial conference that called for the constitutional convention also resolved that a militia be raised, and “that each Private procure his own Musket or Rifle.”116 Similarly, the first General Assembly to meet after adoption of the Constitution declared that it is the duty of all freemen to be at all times prepared to resist the enemy.117 Another militia act stated: “A well regulated militia is the only safe and constitutional method of defending a free state, as the necessity of keeping up a standing army, especially in times of peace, is thereby superceded.”118

  Legislation that predated the Revolution and remained on the books for decades thereafter imposed a fine on any person or persons, “who shall fire any gun or other fire arms ... within the city of Philadelphia.”119 Any person who “wantonly, and without reasonable occasion, discharge and fire off any hand-gun, pistol or other firearms” in inhabited areas on New Years’ night was subject to fine.120 A hunting regulation punished any person who “shall presume to carry any gun, or hunt” on the land of others without permission, or who “shall presume to fire a gun on or near any of the king’s highways.”121 These were the only firearms regulations in Pennsylvania, and they were not perceived as violating the right to bear arms.

  DELAWARE

  Before 1776, Delaware was part of Pennsylvania. Although most of its people supported independence from Pennsylvania, they were divided on the question of independence from Britain. In the Continental Congress, two of Delaware’s delegates—Thomas McKean and Caesar Rodney—voted for independence122 while George Read voted against it.123

  The split vote over independence foretold political divisions in Delaware for the following two decades. McKean and Rodney would lead the Whigs, otherwise known as the Country or Democratic Party. The Tories, the Court or Aristocratic Party, would be led by Read and John Dickinson, who had voted against independence while representing Pennsylvania. In their first test of strength, the election of a convention of delegates to frame a state constitution, the Tories predominated.124

  The constitutional convention began on August 27, 1776, with George Read presiding. On September 2, Read and nine other delegates were appointed to “be a Committee to prepare a Declaration of Rights and Fundamental Rules of this State.”125 Three days later, the committee reported having made progress.126

  Thomas McKean was then appointed to the committee.127 McKean was a follower of Judge George Bryan,128 the most influential member of the Pennsylvania convention, which had recently adopted a declaration of rights.129

  One source claims that McKean authored the Delaware constitution.130 However, the Pennsylvania Declaration of Rights (and later the rest of the Pennsylvania Constitution) had been published in August in Pennsylvania newspapers,131 which circulated in Delaware. A declaration of rights had been reported, but not adopted, in the Maryland convention by late August.132 By September 11, the Delaware Declaration of Rights was debated paragraph­by-paragraph, amended, and adopted.133 George Read, convention president and chairman of the committee, wrote Caesar Rodney that the Declaration “is made out of the Pennsylvania and Maryland Draughts.”134

  As adopted, the Delaware Declaration provided for an armed populace as follows: “That a well regulated Militia is the proper, natural and safe Defence of a free Government.”135 Similar language appeared in the Maryland136 and Virginia Declarations,137 but not that of Pennsylvania. Such language also appeared in Delaware on the eve of the Revolution, such as the New Castle County committee resolution that “a well regulated Militia, composed of the gentlemen, freeholders, and other freemen, is the natural strength and stable security of a free Government.”138 It added that each militia company would choose its own officers, and “each man be provided with a well fixed Firelock.” Both Delaware and Pennsylvania Declarations also included provisions that standing armies are dangerous to liberty, and that the military should be kept subordinate to the civil power.139

  Unlike Pennsylvania, Delaware did not specifically declare that the people may bear arms for defense of self and state.140 However, much of the Delaware convention concerned the arming of the people and the encouragement of independent militia companies. Just after the Declaration was approved, Thomas McKean was appointed to a committee to evaluate a gunsmith’s proposals for erecting a gunlock manufactory in the state.141

  Not all rights were taken for granted. The Declaration of Rights failed explicitly to protect freedom of speech. Only “Persons professing the Christian Religion ought forever to enjoy equal Rights and Privileges in this State.”142 A critic commented that “there are some good things in the Delaware constitution, which are evidently borrowed from the Pennsylvanian, but mangled like a school-boy’s abridgement of a Spectator’s paper. Some of their bill of rights, explained by tories, might prevent all American defence.”143

  Like the other colonies, Delaware traditionally recognized keeping and bearing arms as both a right and a duty. Pre-Revolutionary militia acts required each male to “provide himself” with a firearm and “to keep such Arms and Ammunition by him.”144 “Being persuaded that a well regulated militia is the most effectual Guard and Security to every Country,” the colonial assembly provided “that the Inhabitants may be armed, trained and disciplined in the Art of War ... to defend themselves, their Lives and Properties.”145

  For security against pirates, “all the Inhabitants and Freemen” of the seaport of Lewes were obliged to meet armed on the sound of the alarm.146 The only traditional restriction on possession of firearms in Delaware was “that no bought Servant, or Negro or Mulatto slave, shall, upon any Pretence whatever, be allowed to bear Arms, or to be mustered in any of the Companies of the Militia within this Government.”147

  During the Revolution Whigs and Tories disarmed each other whenever possible, which was not surprising given that they were frequently trying to kill each other. The delegates at the 1776 constitutional convention considered a petition of persons who apologized for their involvement in a recent insurrection. Since they promised to conduct themselves peaceably, the convention resolved “that they be again restored to the Favour of their Country, and that their Arms be redelivered to them.”148 As for the people at large, the convention resolved that militia members were required to provide their own arms.149

  MARYLAND

  On June 27, 1776, the militia of Anne Arundel County adopted resolves directed to their delegates in the upcoming Maryland constitutional convention.150 Proposing a constitution for Maryland, the resolves sought guarantees for jury trial and habeas corpus.151 Declaring against standing armies, it added: “That a well regulated militia be established in this province, as being the best security for the preservation of the lives, liberties and properties of the people.”152 Militiamen should choose their own officers, and firearms would be provided to men who could not afford them.153

  The above resulted from the participation in the election of all taxpayers who bore arms.154 Contrary to the usual property qualifications, Rezin Hammond told protesters in Anne Arundel County “that every man that bore arms in defence of his country had a right to vote, and if they were allowed no vote they had no right to bear arms.”155 Election officials reciting property qualifications were interrupted with shouts of “let every free man vote that carrie
s arms.”156

  The Maryland constitutional convention began its deliberations in mid­August 1776. The militia resolves were repeated as instructions to the delegates from Anne Arundel County.157 While the Whig-dominated convention would reject the democratic Constitution proposed in the resolves,158 both Whigs and Democrats were in accord with a militia composed of the whole people. The Democrats were inspired by Dr. Richard Price, the English philosopher, Thomas Paine, and the radicals of the Pennsylvania constitutional convention, which was proceeding at the same time.159 John Adams and Charles Carroll of Carrollton inspired the Whigs.160

  The committee appointed to draft a declaration of rights and constitution included Matthew Tilghman, Charles Carroll of Carrollton, Thomas Johnson, George Plater, William Paca, Samuel Chase, Robert Goldsborough, Robert T. Hooe, and, until he lost his convention seat, Charles Carrollton the Barrister. Each of the committee members were Whigs, assuring defeat for the Democratic faction.161

  A Declaration of Rights was soon reported, but not debated for some time. At the end of September, the draft Declaration and Constitution were ordered to be primed for the people to consider.162 There were constant interruptions to convention business, so that by mid-October John Parnham moved “that this Convention will enter on no new business (except from evident necessity) until they have finished the consideration of the declaration of rights and form of governmem.”163 The convention proceeded to do so, but after “the bill of rights formerly primed ... has been materially altered by a committee of the whole house,” the convention rejected a motion by William Fitzhugh that it be printed before further consideration for the people at large to read.164

  Little else is known about the drafting of the Declaration of Rights. It was reported, considered, slightly amended, and adopted by November 3.165 The rights it recognized were limited. Freedom of speech was guaranteed only in the legislature.166 The clause “all persons, professing the Christian religion, are equally entitled to protection in their religious liberty,” limited freedom of religion to Catholics and Protestants.167