The Founders' Second Amendment Read online

  At the end of March 1777, a draft of the Constitution in John Jay’s handwriting was reported from committee. Jay played the leading role in framing the instrument, with Gouverneur Morris and Robert R. Livingston as his chief advisors.38 Contrary to the charge resolved by the convention, the committee reported no bill of rights. Yet no record exists of any objection by the convention members, even those of radical persuasions.39

  To be sure, the text of the Constitution guaranteed jury trial where already practiced, as well as religious toleration. Yet a proposal for complete freedom of religion was staunchly opposed and led to the longest debate of the session. Jay’s biographer notes:

  The power of the Church of Rome he knew and feared; he urged, accordingly, amendment after amendment to except Roman Catholics till they should abjure the authority of the pope to absolve citizens from their allegiance and to grant spiritual absolution. The result of his objections was the adoption of a proviso “that the liberty of conscience hereby granted shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the safety of the State.”40

  There appears to have been little controversy over other provisions of the Constitution, or its lack of a bill of rights. The convention journal reflects that on April 20, 1777, the Constitution “was agreed to by every member present, except Colo. Peter R. Livingston, who desired that his dissent thereto be entered on the minutes.”41

  New York’s Constitution of 1777—which took nine months to frame—included no specific declarations about rights such as a free press and bearing arms, but the latter was declared to be a civic obligation:

  [I] t is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore . . . doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be adverse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same may, in the judgment of the legislature, be worth42

  A decade later, New Yorkers who had no bill of rights in their own Constitution were demanding one for the proposed federal Constitution. Writing under the pseudonym “Sydney,” Abraham Yates, Jr., who had been chairman of the committee that drafted New York’s 1777 Constitution, explained why it had no bill of rights:

  While the constitution of this state was in agitation, there appeared doubts upon the propriety of the measure, from the peculiar situation in which the country then was; our connection with Britain dissolved, and her government formally renounced—no substitute devised—all the powers of government avowedly temporary, and solely calculated for defence. . . . Those in opposition admitted, that in established governments, which had an implied constitution, a declaration of rights might be necessary to prevent the usurpation of ambitious men, but that . . . our situation resembled a people in a state of nature, . . . and as such the constitution to be formed would operate as a bill of rights.

  These and the like considerations operated to induce the convention of New York to dismiss the idea of a bill of rights.43

  Whatever effects the lack of a written bill of rights may have had on other rights, bearing arms was encouraged rather than suppressed. As chief justice of the New York Supreme Court, John Jay wrote in 1778 that criminals “multiply exceedingly. Robberies become frequent.”44 Reflecting the traditional hue and cry, New York law required “that all men generally be ready, and armed and accoutered, . . . and at the cry of the country, to pursue and arrest felons.”45

  A statute passed in early 1787 declared “that no authority shall, on any pretence whatsoever, be exercised over the citizens of this state, but such as is or shall be derived from and granted by the people of this state.”46 Containing provisions for the rights of petition and speech, and against excessive bail and the quartering of soldiers, the act declared: “that no citizen of this state shall be constrained to arm himself, or to go out of this state” unless approved by the legislature47 New York would soon insist on a federal declaration of these principles, but that story will be told later in this work.

  VERMONT

  Keeping and bearing arms was not only an abstract right, but also a constant practice of Vermont’ s founding fathers. Led by Ethan and Ira Allen, the Green Mountain Boys sought independence first from New York and later from Great Britain. In his detailed accounts of their exploits, Ira Allen vividly exposited the role of firearms in the hands of the people for purposes of defending the person and the incipient state as well as for hunting and target shooting.48

  Before the Revolution, the Aliens were in constant conflict with New York’s royal governor and British troops over the Vermonters’ land claims. In one incident, they set out to purchase land. Lodging with a Quaker, Ira Allen recalled: “We took our pistols out of our holsters and carried them in with us. He looked at the pistols saying ’What doth thee do with those things?’ He was answered ‘Nothing amongst our friends,’ but we were Green Mountain boys, and meant to protect our persons and property. . . .”49

  Throughout 1776, conventions and committees met in Vermont to plan resistance to the British and to secure land tides against New York’s claims. Petitioning the Continental Congress, Vermonters argued that they had the same right of independence from New York as America had from Britain.50

  A committee including Ira Allen and six others at a September 1776 convention reported objectives for Vermont, including: “To regulate the Militia; To furnish troops according to our ability, for the defence of the Liberties of the United States of America.”51 The convention resolved “that each non­commissioned officer and soldier immediately furnish himself with a good gun with a Bayonet, sword or tomahawk.”52

  Town representatives decided in January 1777 that Vermont should be a free and independent state. The convention declared that the rights of Vermont inhabitants included the privileges and immunities of the free citizens of the other states and that “such privileges and immunities shall be regulated in a bill of rights, and by a form of government,” to be established at the next session of the convention.53

  The constitutional convention, which met July 2–8, 1777, was predisposed toward the example set by Pennsylvania.54 The address “To the Inhabitants of Vermont” by Dr. Thomas Young of Philadelphia urged the Pennsylvania Constitution “as a model, which, with a very little alternation, will, in my opinion, come as near perfection as anything yet concocted by mankind.”55

  Among the provisions included in the Declaration of Rights adopted by the Vermont convention taken verbatim from that of Pennsylvania was the following: “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. . . .”56 Vermont also copied Pennsylvania in declaring “that the inhabitants of this State, shall have liberty to hunt and fowl, in seasonable times, on the lands they hold, and on other lands (not enclosed).”57

  The Declaration included a separate provision relating to militia service. Since every person had “a right to be protected in the enjoyment of life, liberty and property,” each must “yield his personal service, when necessary,” except that “any man who is conscientiously scrupulous of bearing arms” would not “be justly compelled thereto” if he paid an equivalent.58 The difference between being “compelled” to bear arms and having the “right” to bear arms was clear.

  The only laws on the books in this epoch concerning firearms was an act “Regulating the Militia.” It required that all males aged 16 to 50 “shall bear arms, and duly attend all musters,” and that “every listed soldier and other householder, shall always be provided with, and have in constant readiness, a well fixed firelock. . . : or other good fire-arms.”59 Anothe
r act reiterated that every male shall “provide himself, at his own expense, with a good musket or firelock,”60 and that horsemen “shall always be provided with . . . holsters with bear-skin caps, a case of good pistols, a sword or cutlass.”61

  In 1787, Vermont adopted a new constitution that became binding just before the federal constitutional convention met in Philadelphia. It reenacted the guarantee “that the people have a right to bear arms for the defence of themselves and the State. . . .”62 Although Vermont functioned as a state, it was not officially admitted by Congress into the Union until February 18, 1791.

  MASSACHUSETTS

  Following rejection in 1778 by the Massachusetts populace of a constitution with no bill of rights, a convention met the following year to frame a more acceptable constitution. The resultant Constitution of 1780 included a Declaration of Rights which began:

  I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.63

  The Declaration included the following further guarantee which was the first time a state bill of rights recognized the right to “keep” arms :

  XVII. The people have a right to keep and bear arms for the common defence. And as, in time of peace armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.64

  The subcommittee charged with drafting what would become the Constitution of 1780 included James Bowdoin, Samuel Adams, and John Adams.65 While John Adams alone drafted the Constitution and Declaration of Rights, presumably the three discussed the general concept and drafts. Bowdoin had been a patriot leader in the 1768 crises and chaired the Boston town committee that protested the Boston Massacre.66 Sam Adams, of course, was a leading defender of the right to have arms.

  John Adams needed little prompting to add “to keep and” to the phrase “bear arms.” Besides the experience of the Minute Man grabbing his musket from the mantle, keeping arms in the home for security was well recognized. In a 1774 court case, Adams wrote that “an Englishman’s dwelling House is his Castle,” and that every person “shall enjoy in his own dwelling House as compleat a security, safety and Peace and Tranquility as if it was . . . defended with a Garrison and Artillery.”67 Adams exercised the right personally—when he sailed to France in 1778, he took along a pocket pistol.68

  Appealing to “the Laws of Self Preservation,” Samuel Adams had urged patriots “to provide themselves without Delay with Arms” for defense against despotism, and elsewhere remarked that “we may all be soon under the necessity of keeping Shooting Irons.”69

  As noted, the Declaration provided that “the people have a right” to arms. That phrase appeared in the following further provision:

  XIX. The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer.70

  As drafted by Adams and reported by the committee, the phrase that “the people have a right” further appeared as follows :

  The people have a right to the freedom of speaking, writing, and publishing their sentiments. The liberty of the press, therefore, ought not to be restrained.71

  As finally adopted, that language was changed to the following: “The liberty of the press is essential to the security of freedom in a State; it ought not, therefore, to be restrained in this commonwealth.”72 Nonetheless, it is clear that the phrase “the people have a right” meant that individuals composing the populace at large had a liberty to do something without permission of the state, whether it was possessing arms, petitioning, or publishing. It would not make sense to say that “the people have a right” to do something only if the state authorizes it.

  The reservation of the “right” to “the people” clarified that keeping and bearing arms was a civil liberty, not a state military power. Contrasting language was employed to refer to duties of citizens, such as militia service. Thus, the Declaration provided that each individual in society had a right to be protected. “He is obliged, consequently, . . to give his personal service, or an equivalent, when necessary. . . .”73

  The right to bear arms was declared to be “for the common defence,” similar to the right to assemble being “to consult upon the common good.” Neither phrase negated that each activity was a right of the people, not a decision of the government. Further, the arms that a person would bear for the common defense were the same personal arms that such person would “keep.”74 These arms were available for other lawful purposes.

  The American patriots saw themselves as bearing arms for the common defense against the lawless government of the Crown. To bear arms for the common defense included not only defense against foreign invasion but also institutions such as the hue and cry in which citizens defended themselves from and pursued felons. Yet the clause would give rise to controversy for not explicitly recognizing self-defense.

  The section providing for the right to have arms also had a second sentence declaring that “in time of peace armies are dangerous to liberty.” As drafted by Adams and reported by the committee, it used the term “standing armies.”75 The minutes reflect that this was the only change to that section: “The Convention went into the consideration of the 18th article, (the subject military power), and after considerable debate, and expunging the word ‘standing’ before the word ‘armies,’ accepted the same.”76 All armies, not just standing armies, were dangerous to liberty.

  The proposed frame of government was subjected to critical scrutiny at town meetings throughout Massachusetts. At least two towns objected to the Declaration’s arms guarantee as too narrow. The town of Northhampton resolved:

  We also judge that the people’s right to keep and bear arms, declared in the seventeenth article of the same declaration is not expressed with that ample and manly openness and latitude which the importance of the right merits; and therefore propose that it should run in this or some like manner, to wit, The people have a right to keep and bear arms as well for their own as the common defence. Which mode of expression we are of opinion would harmonise much better with the first article than the form of expression used in the said seventeenth article.77

  Similarly, the town of Williamsburg wanted a more explicit guarantee of the right to have arms for self-protection, proposing that the section be amended to read: “that the people have a right to keep and to bear Arms for their Own and the Common defence.” The following explanation was presented:

  Voted Nemine Contradic. Our reasons gentleman for making the Addition Are these. 1st that we esteem it an essential privilege to keep Arms in Our houses for Our Own Defence and while we Continue honest and Lawful subjects of Government we Ought Never to be deprived of them.

  Reas. 2 That the legislature in some future period may confine all the fire Arms to some publick Magazine and thereby deprive the people of the benefit of the use of them.78

  The above arguably glossed over the fact that the Declaration guaranteed the right “to keep” not just to “bear” arms. If “the people” could “keep” their firearms in the home, the arms would be available—as expressed in Article I—for “defending their lives and liberties; . . . and protecting property.”79 John Adams himself upheld the right of “arms in the hands of citizens, to be used at individual discretion, . . . in private self-defence. . . .”80

  A review of the Boston Independent Chronicle for 1780 reveals no controversy over the arms or press guarantees but bitter dispute on freedom of religion.81 That paper’s only references to firearms just before adoption of the Constitution was an advertisement
for “100 Pair Horseman’s Pistols, neatly mounted with Steel.”82

  The Declaration’s strictures against armies won praise from Abbé de Mably in a 1785 pamphlet addressed to John Adams. Mably noted: “You must expect that your people, of whom the laws have so clearly established the sovereignty, may prove difficult to manage, because they will perceive of their power. Armed in the defence of their country, they will become jealous of their dignity.”83

  In the two decades that followed the adoption of the Declaration of Rights in 1780, no laws were passed to prohibit the possession of firearms for lawful purposes. Shays’ Rebellion in September 1786 led to two arms-related acts. The first provided that if twelve or more persons “armed with clubs, or other weapons” gathered, a justice of the peace could order them to disperse and could “require the aid of a sufficient number of persons in arms” to help.84 The second act declared:

  Whereas in a free government, where the people have a right to bear arms for the common defence, and the military power is held in subordination to the civil authority, it is necessary for the safety of the State that the virtuous citizens thereof should hold themselves in readiness, and when called upon, should exert their efforts to support the civil government, and oppose the attempts of factious and wicked men who may wish to subvert the laws and Constitution of Their country.85

  In newspaper commentary in 1786–87, an adherent to making Maine a separate state from Massachusetts reflected on the guarantee of the right to arms. One “Scribble Scrabble” opined that it “does not prohibit the people, or take from them, the right originally in them of using arms for other purposes than common defence. Who will say that if an honest farmer were to discharge his musket, ten times a day, at pigeons or other game, he thereby becomes an enemy to the constitution?”86 Averring that “the constitution does not directly say the people have a right to keep & bear arms for squibing at pigeons and other game,” the writer stated that “the legislature have a power to control it in all cases, except the one mentioned in the bill of rights . . . .” Absent regulation, “the people have the full uncontrolled use of arms . . . .”