The Founders' Second Amendment Page 19
The right to bear arms was not explicitly mentioned, but Maryland’s patriots well knew about and had doubtlessly agreed with Boston’s 1768 resolution that all householders should keep arms, based on the English Declaration of Rights provision that “Protestants may have Arms for their Defence.”168 They could only have read with dismay reports from Boston at that time “that the Inhabitants of this Province are to be disarmed”169 and the more recent 1775 report anticipating a proclamation that all Americans would be required to turn in their arms by a certain date.170 The Association of the Freemen of Maryland found Gage’s actions in Boston “sufficient causes to arm a free people in defence of their liberty” and directed that “the minute men exercise with their own firelocks.”171
Maryland’s 1776 Declaration of Rights did include the following: “That a well regulated militia is the proper and natural defence of a free government.”172 It also contained a provision rejecting standing armies.173
The above was a shortened version of a resolution passed in late 1774 by the deputies appointed by the counties of Maryland as follows:
That a well regulated militia, composed of the gentlemen, freeholders, and other freemen, is the natural strength and only stable security of a free government ... ; will ... render it unnecessary to keep any standing army (ever dangerous to liberty) in this province; and therefore it is recommended ... that each man be provided with a good firelock ... and be in readiness to act on any emergency.174
Not only was keeping and bearing arms a civic duty, but there were no legal restrictions on firearm possession. The only exception was a 1715 enactment providing “that no negro or other slave within this province shall be permitted to carry any gun, or any other offensive weapon, from off their master’s land, without license from their said master,” which was punishable by whipping.175 At any rate, Maryland was among those states with minimal bills of rights.
NORTH CAROLINA
The delegates at the North Carolina constitutional convention that met in November and December 1776, had been instructed by their constituents to adopt a declaration of rights. The inhabitants of Mecklenberg directed “that you shall endeavour that the form of Government shall set forth a bill of rights containing the rights of the people and of individuals which shall never be infringed in any future time by the law-making power or other derived powers in the State.”176 The delegates were urged to acknowledge certain maxims, including that “the principal supreme power is possessed by the people at large, the derived and inferior power by the servants which they employ.”177
The North Carolina convention had two guides for an arms guarantee. Virginia rested a free state on “the body of the people, trained to arms,”178 while Pennsylvania declared “that the people have a right to bear arms for the defence of themselves, and the state.”179 The committee appointed to frame a bill of rights and constitution included convention President Richard Caswell and Joseph Hewes.180 These leaders had a year earlier, as members of the Continental Congress, sent a message to the committees of safety asserting: “It is the Right of every English Subject to be prepared with Weapons for his Defence.” They urged “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.”181
The committee reported the Bill of Rights a month later. It was debated, paragraph by paragraph, for three days, and then adopted.182 Willie Jones appears to have been its draftsman, and Richard Caswell its inspiration. In a convention decades later, one delegate relied on the tradition that Caswell ’dictated the principles, if not the terms” of the Constitution.183 Another delegate averred: “The existing Constitution is thought to have been as much or more the work (the 32nd section [a religious test oath] excepted) of Willie Jones, than any other one individual, yet under that very charter was he [as a deist] proscribed by the bigotry of the framer of the 32nd section.” Jones was “the Champion of the Whigs in the Convention of 1776.”184
Little debate appears to have been raised by proposals to declare such rights as bearing arms and free assembly. The free exercise of religion was another matter. Delegate Samuel Johnston described a proposal requiring each member of the legislature to take a test oath swearing “that he believed in the holy Trinity and that the Scripture of the Old Testament was written by divine inspiration. This was carried after a very warm debate and has blown up such a flame that every thing is in danger of being thrown into confusion.”185 But a watered down sectarian test oath was finally adopted as Article 32.
As adopted, the Declaration of Rights asserted the following guarantees recognizing two rights of “the people”:
XVII. That the People have a right to bear Arms for the Defence of the State; and as standing Armies in Time of Peace are dangerous to Liberty, they ought not to be kept up ....
XVIII. That the People have a Right to assemble rogether.186
It was “the People” who had “a right” to bear arms and to assemble. The militia was not mentioned. Having assembled in arms against the Royal forces since the days of the colonial Regulators, North Carolinians now engaged in armed revolt found these propositions unquestionable. “The right of every English Subject to be prepared with Weapons for this Defence”187 was radically expanded to include explicit recognition of arms bearing “for the Defence of the State” and against the Royal government.
To be sure, the guarantee did not explicitly recognize the people’s right to bear arms “for defence of themselves” as did that of Pennsylvania. Yet the right remained in “the People,” and “the Defence of the State” presumably included local defense such as in the hue and cry as well as defense from invaders.
The Constitution did include a provision declaring a collective right: “The Property of the Soil in a free Government being one of the essential Rights of the collective Body of the People, it is necessary ... that the Limits of the State should be ascertained with Precision.”188 By contrast, arms bearing and assembly were rights of “the People.”
Of course, North Carolina did impose the duty of militia service. The Provincial Congress had resolved in April 1776 “that each Militia Soldier shall be furnished with a good Gun, Bayonet, Cartouch Box, Shot Bay and Powder Horn, a Cutlass or Tomahawk; and where any person shall appear to the Field Officers not possessed of sufficient Property to afford such Arms and Accoutrements, the same shall be provided at Public Expense.”189
Similarly, a 1787 North Carolina enactment declared “that all Freemen and indentured Servants within this State, from 15 to 50 years of age, shall compose the militia thereof.”190 Privates furnished their own muskets and rifles, while horsemen had pistols.191 Remaining on the books was legislation requiring every man to pursue felons and follow the hue and cry.192
No laws in North Carolina during and after this period prohibited possession of guns and pistols by freemen.193 However, a mid-eighteenth-century enactment remained on the books providing that “no slave shall go armed with Gun, Sword, Club, or other Weapon,” unless he had a certificate to carry a gun to hunt, issued with the owner’s permission.194 Having arms was manifestly an attribute of free citizenship.
The year 1776 was rich in the making of constitutions and bills of rights. Virginia and Pennsylvania particularly stand out as contributing to these novel attributes of republicanism. Other states would follow this example between 1777 and 1784.
CHAPTER 7
“A Musket to Defend These Rights”
IN AMERICA, declared Dr. Richard Price in 1779, “every inhabitant has in his house (as a part of his furniture) a book on law and government, to enable him to understand his civil rights; a musket to enable him to defend these rights; and a Bible to enable him to understand and practice his religion.”1 These words captured the spirit in every one of the newly independent states, regardless of the extent to which rights were formally articulated in a constitution.
Following the constitution making by seven states in 1776,
five states adopted constitutions (three with bills of rights) in the period 1777 through 1784, and two states simply continued to operate under their colonial charters. British war measures often left the constitutional conventions with little leisure to declare abstract rights. Further, the philosophical view would be expressed that a free people had little use of a written list of rights, the existence of which would be misconstrued by future despots to deny any rights not mentioned.
This chapter concerns the states that approved their first constitutions after 1776 or did not adopt any constitution during the Revolution at all, including Georgia, New York, Vermont, Massachusetts, New Hampshire, Connecticut, and Rhode Island. Particular regard will be paid to conceptions of the right to keep and bear arms.
GEORGIA
At the coming of the American Revolution, Georgia had the smallest population of all the colonies.2 Even though the agricultural colony produced no declarations of rights like those of Virginia or North Carolina, its settlers took for granted such rights as keeping and bearing arms. When the colonies to the north began to resist British tyranny, a writer from Georgia praised the model of the Fairfax County Independent Militia Company and implored that “the English troops in our front, and our governors forbid giving assent to militia laws, make it high time that we enter into associations for learning the use of arms, and to choose officers. . . .”3
As of April l776, Georgia was governed by temporary Rules and Regulations that reflected the Whig doctrine that governmental power originated with the people.4 When a convention assembled early the next year to frame a permanent constitution, it was led by radical Whigs,5 whose political creed emphasized the role of the armed citizen in a republic.
Convention records reflect that on January 24, 1777, a committee of seven was elected to draft a constitution.6 Its chairman and perhaps most active member was Button Gwinnett,7 president of Georgia under the old Rules and Regulations. Five days later, Gwinnett reported a proposed constitution to the convention, which amended and then unanimously adopted it on February 5.8
The preamble recited that British tyranny “has obliged the Americans, as freemen, to oppose such oppressive measures, and to assert the rights and privileges they are entitled to, by the laws of nature and reason.”9 The text contained no bill of rights, although it declared against excessive fines and bail and guaranteed habeas corpus, free press, and jury trial.10 The rights to free speech, assembly, and bearing arms were not specifically recognized but were assumed as fundamental by the Whigs who wrote the Constitution. Arms bearing was more than a right, it was mandatory: “Every County in this State that has, or hereafter may have, two hundred and fifty men upwards, liable to bear arms, shall be formed into a battalion.”11
The Whigs were split between the Radical, Popular, or Country Party and the Conservative, City, or Merchant Party.12 The former, led by Button Gwinnett, favored civilian control over the military while the latter, led by Brigadier General Lachlan Mcintosh, believed Georgia’s new Constitution to be too democratic.13 Gwinnett and Mcintosh clashed over leadership of an expedition against St. Augustine, Florida. When the legislature approved Gwinnett’s conduct, the two faced each other in a duel. Both were wounded, and Gwinnett died in three days.14
The British held most of the settled areas of Georgia from 1778 through the end of the Revolution. Patriot guerrilla bands composed of self-armed and independent citizens harassed the invaders without end. British expeditions burned homes and destroyed property as they marched, sparing only those who surrendered their arms on demand.15
Georgia’s delegates at the Continental Congress in 1778 sought to deny citizenship rights to those who refused to pick up the gun in defense of the Revolution. Article IV of the Articles of Confederation excepted paupers, vagabonds, and fugitives from the guarantee that “the free inhabitants of each of those states . . . shall be entitled to all privileges and immunities of free citizens in the several states.” Georgia proposed that “all persons who refuse to bear Arms in defence of the State to which they belong,” and persons convicted of treason, should also be excepted from the privileges and immunities of free citizens.16 Congress declined to add the provision.
Under the laws in effect in Georgia in that epoch, bearing arms was required. Conflicts with Native Americans prompted a 1770 enactment that “every male white inhabitant of this province, (the inhabitants of the sea port towns only excepted who shall not be obliged to carry any other than side arms) who is or shall be liable to bear arms in the militia . . . and resorting . . . to any church . . . shall carry with him a gun, or a pair of pistols.”17 Each man was required to “take the said gun or pistols with him to the pew or seat,” and these arms were to “be fit for immediate use and service.”18
Pre-Revolutionary legislation also required that every white man liable to patrol duty “shall provide for himself, and keep always in readiness, and carry with him on patrol service a good gun or pistol.”19 The patrols “shall have full power to search and examine all negro houses for offensive weapons and ammunition.”20 It was unlawful “for any slave, unless in the presence of some white person, to carry and make use of fire arms,” unless the slave had a written license from his master to hunt, albeit “lodging the same gun at night within the dwelling house of his master, mistress or white overseer.”21 No license was required for a slave to use a gun to kill birds and beasts of prey on the plantation.22 Any person finding a slave off the plantation without permission, “if he be armed with such offensive weapons aforesaid, him or them to disarm, take up, and whip.”23
Having arms was the right and duty of the free man, while deprivation of arms was the mark of the slave. Georgia recognized the rights of her citizens, but was far from ready to extend these rights to African Americans.
NEW YORK
New York would not adopt a constitution until 1777, and it would have no bill of rights, but New York patriots shared similar concepts of rights as elsewhere. In revolutionary New York, keeping and bearing arms was an unquestioned fact. This reality is exemplified by newspapers of New York City in 1776, before its occupation that fall by the British under General Howe.
Detailed instructions for the home manufacture of gunpowder and advertisements for sword canes were published in the New York Packet’s first issue for 1776.24 That summer, the New York convention passed a resolution supporting the private manufacture of gunpowder, which that body called “the Means of Defence and Self-preservation.”25 Until the city was occupied by the British, the following advertisements regularly appeared: “Those Gentlemen who are forming themselves into Companies in Defence of their Liberties; and others who are not provided with SWORDS may be suited therewith by applying to Charles Oliver Bruff.”26 Various sword designs inscribed with one’s favorite patriot slogan could be had.
Discussion ensued in the press about how the armed people could defeat standing armies. “An English American” proposed: “For our security against the introduction of British troops to enslave us in times of tranquility, when we had forgot the use of arms, a perpetual standing militia bill should form part of the compact, by which means the people of the colonies would keep up their martial spirit, and always be prepared against the attack of arbitrary power.”27 The writer proposed that the king could retain a limited force to prevent sudden invasion. “Whoever asserts that 10 or 12,000 soldiers would be sufficient to control the militia of this Continent, consisting of 500,000 brave men, pays but a despicable compliment to the spirit and ability of Americans.”28
“An Independent Whig” rejected the idea of an armed elite in place of a general militia composed of the whole people: “The Praetorian guards at Rome, were . . . not a larger body, if so large; yet they kept the whole world in slavery for many years, raised any one to be Emperor whom they pleased, and cut him off if he happened to disoblige them. . . . A standing army have great power to do mischief, and enslave countries, because they are already raised.”29 Ineffective at resisting invasion, “the soldi
ers are the dregs of every nation.”30 “They ought not to be named with the Provincials and Militia, who are freemen, sons of liberty, property, and bravery.” A militia trained to be expert at arms would defeat any invader.31
Such subversive talk ended in September 1776 with the British conquest of New York City, and instead city newspapers included a Proclamation of General Howe at the top of page one of every issue that decried that “several Bodies of armed Men . . . do still continue their Opposition to the Establishment of legal Government and Peace.”32 The occupation lasted through November 1783, months after the surrender at Yorktown.
Due to the British onslaught, the provincial convention of New York was one of the most erratic of all the newly independent states. Its place of assembly was repeatedly pushed around the state by British troop movements.33 In his biography of Gouverneur Morris, Theodore Roosevelt noted that “the members were obliged to go armed, so as to protect themselves from stray marauding parties.”34
The convention began its deliberations on August 1, 1776, and unanimously resolved that a committee draft a plan for a new form of government. The committee would “report at the same time a bill of rights; ascertaining and declaring the essential rights and privileges of the good people of this State, as the foundation for such form of government.”35 Thirteen members were elected to this committee, several of whom would be major figures in the debates over the federal Constitution a dozen years later.36 The committee was ordered to report a constitution and bill of rights on August 26, but the journal includes no mention of the subject on that day. For the next six months, the convention functioned mainly as a committee of safety whose members were dispersed throughout the state. Some fought the invaders while others procured arms and ammunition.37