The Founders' Second Amendment Read online

  James Madison lived up to his promise and introduced what became the Bill of Rights in the first session of Congress in 1789. The Second Amendment was interpreted, as federalist Tench Coxe expressed it, to guarantee the right of the people to keep and bear “their private arms.” The Senate rejected restricting the right to bear arms to “the common defence” and also rejected a proposed state power to maintain a militia. These developments are described in Chapter 12.

  The proposed Bill of Rights was then considered for adoption by the states. No record exists of any criticism of “the right of the people to keep and bear arms,” although the militia clause was taken to task for not actually doing anything. The Bill of Rights, as explained in Chapter 13, was finally adopted in 1791.

  Meanwhile, the nature of a well regulated militia was debated in Congress. The Militia Act of 1792 would require that all able-bodied white males enroll in the militia and provide their own arms. Both the power of the states to maintain militias and the right of individuals to have arms for self-defense, as Chapter 14 shows, were considered basic.

  “Old soldiers never die, they just fade away” —the same could be said for the Founders, as detailed in Chapter 15. The first commentary on the Constitution, by St. George Tucker, posited that the Second Amendment protects individual rights and that legislative infringement was subject to judicial review. George Washington and John Adams both exposited and exercised the right to bear arms. Thomas Jefferson loved and collected good books, good wines, and good firearms. Their generation, but not their constitutional ideals, faded away.

  What does the Second Amendment say? This is the subject of the Conclusion, which engages in a linguistic analysis as informed by the Founders’ usage of terms. The terms “right of the people” as used in the First, Second, and Fourth Amendments are contrasted with such phrases as “the militia, when in actual service” in the Fifth Amendment and with the powers “reserved to the states respectively” in the Tenth Amendment.

  A lively debate has erupted in recent times on the meaning of the Second Amendment.1 Under the “collective rights” view, the Amendment protects state powers to maintain militias, not an individual to keep and bear arms.2 A hybrid version argues that it protects a “civic right” to bear arms in the militia.3 Other studies focus on the extent of firearm ownership in the Founders’ generation.4

  The historical evidence set forth in this work suggests that the Founders had a predilection for both a well regulated militia and an individual right to have arms, and that they envisioned that the two clauses of the Amendment would complement rather than be in tension with each other. Colonial newspapers, forgotten diaries, and related sources have been exhaustively examined for insights into what the Founders viewed as violations of the right to bear arms. The history of how demands for a bill of rights came to develop has been enhanced by publication of numerous additional volumes of The Documentary History of the Ratification of the Constitution.

  But that is getting ahead of the story, which is far richer than any modern legal controversy. The Crown’s attempts to disarm the colonists as a contributing grievance in the chain of events leading to the American Revolution and the imperative of guaranteeing the right to have arms in bills of rights are themes that pervade the thinking of the Founders’ generation. This book seeks to interweave expressions of concern for that right and other liberties which found expression in bills of rights with contemporaneous developments leading to the founding of the constitutional republic. The meaning and scope of the Second Amendment may be fully comprehended only in the context of the Founders’ understanding of what is necessary to guarantee, as the amendment itself states, “the security of a free State.”

  A bill of rights is intended not only to instruct government on its limits, but also to “giv[e] information to the people,” wrote St. George Tucker in 1803. Every man, even the most humble, thereby “may learn his own rights, and know when they are violated.”5 Ferreting out the Founders’ conceptions of the right to have arms side-by-side with an array of other substantive rights contributes to a broader understanding of the Bill of Rights as a whole.

  Disarming the Colonists

  CHAPTER 1

  “The Inhabitants to Be Disarmed”

  AS BRITISH OCCUPATION TROOPS were about to land in Boston, an anonymous patriot signing his name only as “A.B.C.” issued the following dire warning in the Boston Gazette on September 26, 1768, which would be repeated throughout the colonies:

  It is reported that the Governor has said, that he has Three Things in Command from the Ministry, more grievous to the People, than any Thing hitherto made known. It is conjectured 1st, that the Inhabitants of this Province are to be disarmed. 2d. The Province to be governed by Martial Law. And 3d, that a Number of Gentlemen who have exerted themselves in the Cause of their Country, are to be seized and sent to Great-Britain.

  Unhappy America! When thy Enemies are rewarded with Honours and Riches; but thy Friends punished and ruined only for asserting thy Rights, and pleading for thy Freedom.1

  The most influential patriotic newspaper in the colonies, the Boston Gazette’s chief contributor was Samuel Adams—a likely suspect as author of the above lines—and its other distinguished writers included James Otis, Josiah Quincy, and John Adams.2 While the seeds of the Revolution had been sown with the Stamp Act crisis of 1765 and Parliament’s subsequent claim that it could bind the colonies “in all cases whatsoever,”3 it was in 1768 that the patriots began to charge that the Ministry intended to disarm the inhabitants.

  This warning foreshadowed what would come to fruition over a half decade later, in 1774–75, when the Crown, imposing martial law, did indeed seek to disarm the inhabitants and to seize and send “traitors” to England. For all the patriots knew, however, the Royal government could take such drastic measures sooner rather than later.

  On September 8, Governor Francis Bernard leaked information that British troops were sailing to Boston.4 In response to the above charges of “A.B.C.,” Bernard evasively explained: “My Apprehensions that some of his Majesty’s Troops are to be expected in Boston, arise from Information of a private Nature: I have received no public Letters, notifying to me the coming of such Troops, and requiring Quarters for them; Whenever I do, I shall communicate them to his Majesty’s Commands.”5 Actually, as explained below, the governor himself had requested troops to enforce British tax collection in the colonies.

  After Governor Bernard refused demands that he convene a general assembly of the populace, enraged patriots plotted resistance. On the evening of September 11, James Otis, Samuel Adams, and other popular leaders met at the house of Joseph Warren to draft resolutions to be presented at a town meeting planned for the next morning.6

  The greater part of Boston’s populace turned out for the stormy meeting that would take place on September 12–13. They met in Faneuil Hall and its surrounding square—the marketplace and town hall that still stand today.7 Rousing speeches were made and resolutions were adopted deploring taxation and standing armies. Four hundred muskets that belonged to the town lay exposed on the floor.8 Hotheads demanded that the muskets be distributed to the people then and there, but James Otis, who presided over the meeting, persuasively argued: “There are the arms; when an attempt is made against your liberties, they will be delivered . . . .”9 Instead, the assembly considered and passed the following prepared resolution admonishing every man to provide arms for himself:

  Upon a Motion made and seconded, the following vote was passed by a very great Majority, viz.

  whereas, by an Act of Parliament, of the first of King William and Queen Mary, it is declared, that the Subjects being Protestants, may have arms for their Defence; It is the Opinion of this town, that the said Declaration is founded in Nature, Reason and sound Policy, and is well adapted for the necessary Defence of the Community.

  And Forasmuch, as by a good and wholesome Law of this Province, every listed Soldier and other Householder (except Troopers, w
ho by Law are otherwise to be provided) shall always be provided with a well fix’d Firelock, Musket, Accouterments and Ammunition, as in said Law particularly mentioned, to the Satisfaction of the Commission Officers of the Company; and as there is at this Time prevailing Apprehension, in the Minds of many, of an approaching War with France: In order that the Inhabitants of this Town may be prepared in Case of Sudden Danger: voted, that those of the Inhabitants, who may at present be unprovided, be and hereby are requested duly to observe the said Law at this Time.10

  Parliament had indeed, in the English Bill of Rights of 1689, declared certain “true, ancient and indubitable rights,” including: “That the Subjects which are Protestants, may have Arms for their Defence suitable to their Condition, and as are allowed by Law.” This stemmed from the grievance that James II had attempted to subvert “the Laws and Liberties of this Kingdom,” in part “By causing several good Subjects, being Protestants, to be disarmed, at the same Time when Papists were both armed and employed, contrary to law.”11

  While disingenuous, the alleged apprehensions about a war with France provided an urgent reason to admonish every man who was not already armed to obtain a firearm, as required by the cited law. The real reason for strict compliance could hardly be stated publicly—that the people should arm themselves for protection against the approaching British troops.

  As far back as 1645, Massachusetts law had required “that all inhabitants ... are to have armes in their houses fit for service.”12 British member of Parliament William Gerard Hamilton, who opposed taxing the American colonies, warned in 1767 about the colonists:

  There are, in the different provinces, about a million of people, which we may suppose at least 200,000 men able to bear arms; and nor only able to bear arms, bur having arms in their possession, unrestrained by any iniquitous Game Act. In the Massachusetts government particularly, there is an express law, by which every man is obliged to have a musket, a pound of powder, and a pound of bullets by him ...13

  A general militia composed of all citizens capable of bearing arms was seen as superior to a select militia consisting of a selective group, which bordered on a standing army, the bane of liberty. The English Bill of Rights of 1689 had also accused James II of subverting liberty in part “By raising and keeping a Standing Army within the Kingdom in Time of Peace, without Consent of Parliament, and quartering Soldiers contrary to Law.” It accordingly declared “That the raising or keeping a standing Army within the Kingdom in Time of Peace, unless it be with Consent of Parliament, is against Law.”14

  The above would be reflected in one of the resolutions adopted by the above Boston assembly, which met on September 12–13, as follows:

  And whereas in the aforesaid Act of Parliament it is declared, That the raising or keeping a standing Army, within the Kingdom in Time of Peace, unless it be with the Consent of Parliament, is against Law: It is the Opinion of this Town, that the said Declaration is founded in the indefeasible Right of the Subjects to be consulted, and to give their free Consent, in Person, or by Representatives of their own free Election, to the raising and keeping a standing Army among them; And the Inhabitants of this Town, being free Subjects have the same Right, derived from Nature and confirmed by the British Constitution, as well as the said Royal Charter; and therefore the raising or keeping a standing Army, without their Consent, in Person or by Representatives of their own free Election, would be an Infringement of their Natural, Constitutional and Charter Rights; and the employing such Army for the enforcing of Laws made without the consent of the People, in Person, or by their Representatives, would be a Grievance.15

  The assembly also decided that the selectmen of Boston—the town’s elected councilmen—should send a circular letter to the selectmen of several other local towns, calling for a convention to meet on September 22. The letter recited the following allegations: “The concern and perplexity into which these things have thrown the people, have been greatly aggravated, by a late declaration of his Excellency governor Bernard, that one or more regiments may soon be expected in this province. The design of these troops is, in every one’s apprehension, nothing short of enforcing by military power the execution of acts of parliament ....”16

  The letter was well received, and delegates from nearly two hundred towns in Massachusetts arrived at Faneuil Hall on the appointed morning. Furious, Governor Bernard ordered them to disperse immediately. The delegates replied with a letter explaining the reasons for the assembly, but the governor refused to receive it and again declared that the assembly was illegal.17 The selectmen remained to finish their business, adopting declarations and describing their grievances in a letter to the king.18

  The colonists felt that they had inherent rights as Englishmen. These rights included not just keeping and bearing arms and jury trial by one’s peers but also the right to petition for redress of grievances and the right of representation—which extended not just to the ever-present issue of taxation but also whether a standing army would be allowed. The right against searches and seizures without a warrant, the sanctity of the home, and many other rights must be counted among the rights of an Englishman that the Americans felt they inherited.19

  It was in these days of escalating conflict that “A.B.C.” wrote in the Boston Gazette, as quoted at the beginning of this chapter, that the governor had received three commands from the ministry “more grievous to the People, than any Thing hitherto made known”: that “the Inhabitants of this Province are to be disarmed,” “the Province to be governed by Martial Law,” and patriots “are to be seized and sent to Great-Britain.”20

  The troops, some seven hundred infantrymen from Halifax, Nova Scotia, actually landed on October 1.21 They took over key points in Boston, including Faneuil Hall.22 Richard Draper, official printer to the Royal governor,23 advised the public to remain calm and denied A.B.C.’s charges. “We are authorized to inform the Publick, that the Article of the Report of the Sayings of the Governor ... is an infamous Lye, invented for the wicked Purpose of raising groundless Fears of, and creating an unnatural Disaffection to his Majesty and his Government.”24 A.B.C. shot back:

  I observe Mr. Draper in his last paper says he is authorized to assure the Publick, that the Reports mentioned in your Paper of September 26, was an infamous Lie.... Mr. Draper (as he was about the Town, and these Reports were the subject of much Conversation) must have known he was publishing a Falsehood .... When an armed Force is bro’t in upon a peaceable Country against their Consent, and in Violation of their Rights as Men and British subjects, we have Reason to believe that soon unheard of Oppressions are coming upon us.25

  Relations between Britain and her American colonies, which had been simmering for some time, were reaching a new level of conflict, the beginning of a spiral that would eventually push the colonists toward independence. The underlying basis of the conflict culminating in the above events concerned taxation. In February 1768, the Massachusetts House of Representatives had circulated a letter of grievances to other representatives throughout the colonies, condemning unjust taxation while still asserting their loyalty to the king.26 The source of their woes was the Townshend Acts, particularly the Revenue Act, which imposed customs duties on imported glass, lead, paints, paper, and tea.

  The letter was received with sympathy and agreement but caused great insult to Lord Hillsborough, secretary of state for colonial affairs. Hillsborough wrote to the colonial governors, advising them to quell any support their assemblies would give to the letter, and demanded that the Massachusetts House of Representatives rescind its proceedings.27 It refused, and Governor Bernard dissolved the House. When they reconvened in May, as required by their charter, they were again requested to rescind their previous resolutions. Instead of doing so, the House made a failed attempt to impeach Bernard, after which it was once again dissolved.28

  In the meantime, the assemblies of the other colonies adopted resolutions agreeing that the British taxes were illegal and sent petitions to the C
rown and Parliament.29 The escalating trouble spearheaded by Boston prompted Lord Hillsborough on June 8 to write an instruction to General Thomas Gage, commander in chief of the British army in North America, to send “such Force as You shall think necessary to Boston, to be Quartered in that Town, and to give every legal assistance to the Civil Magistrate in the Preservation of the Public Peace; and to the Officers of the Revenue.”30

  Tensions between the colonists and the Crown escalated further as a result of the abrupt seizure on June 10 of Liberty, John Hancock’s ship, which allegedly had imported more wine from Madeira than the volume declared for payment of the duty.31 As Mercy Otis Warren later recounted, “The mode of seizure appeared like a design to raise a sudden ferment, that might be improved to corroborate the arguments for the necessity of standing troops to be stationed within the town.”32 Some mischief followed, resulting in broken windows of the custom house office and perhaps the threatening of the officers’ lives. Hotheads dragged one of the collector’s boats through town and set it ablaze.33 The riot gave Bernard the much-desired excuse to call for troops to be stationed in Boston and prompted Hillsborough to order General Gage to strengthen the British garrison there.34

  As a protest against the Townshend Act duties, on August 1 some sixty Boston merchants agreed that they would not, at the start of the new year, import any tea, paper, glass, or painters’ colors until the duties on these articles were repealed; further, they would import nothing from Great Britain except salt, coal, and a handful of other critical items—including “bar-lead and shot.”35 “Bar-lead” was melted and molded into musket balls, and “shot” consisted of smaller balls for firing from fowling pieces, as shotguns were called in those days. Over the following months, similar nonimportation agreements were adopted in most of the other colonies.36