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  While the legislature could regulate the use of arms for purposes other than the common defense, the right to keep arms appeared more absolute. As “Senex” wrote in response: “The idea that Great Britain meant to take away their arms, was fresh in the minds of the people; therefore in forming a new government, they wisely guarded against it.”87

  “Scribble Scrabble” wrote further that rights such as voting are not natural rights but are conferred by law. “How different is the case of keeping and bearing arms. This is a right almost coeval with man.”88 Since the time of Adam, who “had a right, in Paradise, to have grasped a club and smashed the old Serpent,” all men have had “a right to keep and bear arms for their common defence, to kill game, fowl, &c.” He continued: “The Bill of Rights secures to the people the use of arms in common defence; so that, if it be an alienable right, one use of arms is secured to the people against any law of the legislature.” And unless the legislature acted, “whatever right people had to use arms in a state of nature, they retain at the present time. . . .”

  While the use of arms for purposes other than the common defense could be regulated, the possession of arms was constitutionally protected. Among the rights of “every subject,” according to a 1793 summary, was “that he may keep arms. . . .”89 As the Supreme Judicial Court of Massachusetts would state, the guarantee protects “the right to keep fire arms,” bur does “not protect him who uses them for annoyance or destruction.”90

  NEW HAMPSHIRE

  New Hampshire was the eighth of the independent states to adopt a bill of rights, but it did not do so until 1784, three years after the British surrendered at Yorktown. New Hampshire’s brief constitution of 1776 complained that the British were “depriving us of our national and constitutional rights and privileges.”91 A constitution proposed and rejected by the town meetings in 1779 included a short declaration of rights that stated: “We the people of this State, are entitled to life, liberty, and property; and all other immunities and privileges which we heretofore enjoyed.”92

  Several drafts of constitutions were developed in a series of conventions and town meetings between 1781 and 1783. A convention address to the people held that “the strength and safety of this State will greatly depend on the keeping up a well regulated militia”93 and that “the bill of Rights . . . is the foundation on which the whole political fabric is reared.”94 One of the convention leaders was John Sullivan, then attorney general and soon to be president of the state.95

  Also a militia chief, on December 14–15, 1774, Sullivan had led New Hampshire citizens to break open His Majesty’s Castle William and Mary at Portsmouth Harbor, seizing one hundred barrels of gunpowder and sixty stand of small arms.96

  Sullivan now joined with his compatriots in drafting a constitution. Ratified by the towns and made effective in 1784, its Bill of Rights included the following interrelated articles:

  II. All men have certain natural, essential, and inherent rights; among which are—the enjoying and defending life and liberty—acquiring, possessing and protecting property—and in a word, of seeking and obtaining happiness. . . .

  X. The doctrine of non-resistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind. . . .

  XXIV. A well regulated militia is the proper, natural, and sure defence of a state.

  XXV. Standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the legislature.

  The right of each individual of “defending life and liberty,” the right to resist oppression, and the preference of a militia over a standing army all embodied a right that was not explicitly articulated but was inherent in those concepts: the right to keep and bear arms.

  The Constitution also proclaimed the right to be protected and the duty of each “to contribute his share in the expense of such protection, and to yield his personal service when necessary.”97 Even so, the right of a pacifist not to bear arms was recognized too: “No person who is conscientiously scrupulous about the lawfulness of bearing arms, shall be compelled thereto, provided he will pay an equivalent.”98 To be sure, the Bill of Rights had limits. The Protestant religion was state supported, and only Christians “shall be equally under the protection of the law.”99 Freedom of speech was recognized only in the legislature.100

  The Act for the Establishment and Regulation of the Militia of 1786 provided that “the training band . . . shall consist of all the able-bodied male persons within the state, from sixteen years old to forty,”101 and that all exempt males “shall constitute an alarm list . . . and shall, in all respects, be equipped with arms and accoutrements, as is by this act directed for those of the training band.”102 The act required that all persons “both in the alarm list and training band, shall be provided, and have constantly in readiness, a good musket, and a bayonet fitted thereto” with ammunition and supplies.103 Persons unable to furnish themselves with arms would be issued arms by the towns.104 Once every six months, the commanding officer of each alarm company would “call his company together, and examine their arms and accoutrements,” and punish any deficiency of arms.105

  The Perpetual Laws of the State of New Hampshire, the statutes enacted from 1776 to 1788, contain no restriction on the right to keep and bear arms. However, a 1786 act found that “the keeping of large quantities of gun-powder in private houses in Portsmouth . . . Would greatly endanger the lives and properties of the inhabitants thereof, in case of fire; which danger might be prevented, by obliging the owners of such powder, to deposit the same in the magazine provided by said town for that purpose.”106 The act provided that if a person “shall keep in any dwelling-house, store or other building . . . more than ten pounds of gun-powder,” the powder would be forfeited. There would be chosen annually by the voters “a keeper of said magazine, all the powder so deposited, and to account therefore.”107

  The purpose of the law was not to control the populace but to prevent urban fires caused by large quantities of black powder, a volatile substance. The owners of the powder were protected by being able to elect the keeper of the magazine and to retrieve their powder on request. As they proved in 1774, the citizens of Portsmouth knew how to withdraw their deposits if the keepers were reluctant.

  While the New Hampshire bill of rights did not explicitly recognize the right to bear arms, when the federal Constitution was proposed three years later, that state’s convention demanded recognition that “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.”108 As elsewhere, rights may not have been listed in a state declaration, but recognition was demanded in a federal bill of rights.

  CONNECTICUT

  “The Provinces of [Connecticut and Rhode Island],” complained William Knox in 1763, who would later become the British undersecretary of state, “are modeled upon the Ideas of corporate Towns; they . . . enact what Laws they please with[out] any Check or Controul, nor has the Crown any Hold, or scarcely any knowledge of them.”109 After independence was declared, these two colonies saw no need to adopt formal constitutions, much less bills of rights. Connecticut’s charter of 1662, which originated in town meetings, was reaffirmed by the General Assembly in October 1776 and remained operative until the adoption of a constitution and bill of rights in 1818.110

  All males aged 16 through 50 were required to bear arms under the old militia law still in force in 1775.111 When Gage disarmed Boston, Connecticut passed legislation to encourage the manufacture of firearms and gunpowder and established regulations for Minutemen.112 The Revolutionary press, led by the Hartford Courant and the New Haven Post Boy, called for the people to take arms and spread the alarm.

  As reflected in Connecticut’s 1784 code, citizens were required to come armed to the watch and ward113 and to pursue felons in the hue and cry.114 The Militia Act declared that “the Defence and Security of all free States depends (under God) upon the Exertions of a well regulated and Disciplined Milit
ia.”115 All males aged 16 through 45 were in the militia. Both militia infantrymen “and Householders under fifty-five Years of Age, shall, at all times be furnished at their own Expense, with a well fixed Musket,” and horsemen with “a Case of good Pistols, a Sword or Cutlass.”116 The commander reviewed the required arms annually, including those of “Householders and others by Law obliged to keep Arms.”117

  That same year, Dr. Richard Price published his Observations on the Importance of the American Revolution. The British philosopher, whose works sold widely in England and America, was well familiar with the theory of rights underlying the above laws. Price stated:

  God forbid, that standing armies should ever find an establishment in America. . . . No wise people will trust their defence our of their own hands, or consent to hold their rights at the mercy of armed slaves. Free states ought to be bodies of armed citizens, and always ready to turn out, when properly called upon, to execute the laws, to quell riots, and to keep the peace. Such . . . are the citizens of America.118

  Price, who had been awarded the LL.B. from Yale College, referred to “Connecticut, and some others of the American provinces; where the inhabitants consist . . . of an independent and hardy Yeomanry, all nearly on a level—trained to arms,—instructed in their rights.”119 Price contrasted Britain, “consisting as it does of unarmed inhabitants,” with the American states, which all had “a well-trained militia.”120

  Minister and politician Timothy Dwight, a chaplain in the Connecticut Continental Brigade during the Revolution and later president of Yale College, would write: “The people of New-England have always had, and have by law always been required to have, arms in their hands. Every man is, or ought to be, in the possession of a musket.” Yet he did not know of “a single instance, in which arms have been the instruments of carrying on a private quarrel.”121

  RHODE ISLAND

  Two years of Revolutionary War only confirmed the assessment of colonial Undersecretary William Knox about two of the colonies that would adopt no new constitution during the Revolution. In 1777 he observed: “That the Constitutions under which the Charter Colonies have been settled are ill adapted to excite in the Inhabitants a Love of Monarchy, and the British Government, & a desire to continue connected with Great Britain, need not be proved. Rhode Island & Connecticut are simple Republics.”122 Knox’s proposal that “the Arms of all the People should be taken away”123 was particularly unrealistic in Rhode Island, a proven gateway for smuggling arms.

  Just before Lexington and Concord, the Newport Mercury urged the readers to arm themselves, for every patriot “will prepare himself to defend (Life, Liberty or Property) against every Invader.”124 In the following months, the Mercury reprinted various attacks on Gage for disarming the people of Boston.

  In 1775, the people of Rhode Island were generally armed and organized into groups from plain mobs to independent militias.125 The town of Providence implored nearby inhabitants to “hold yourself in readiness” and bring all weapons “you have by you” when the alarm sounds.126 This was possible because of the traditional public policy of the colony. The Militia Act, reenacted several times during 1718–1798, provided that every citizen aged 18 through 44 must “provide himself with a good musket or firelock.”127 The horseman was to furnish himself with a pair of pistols and a saber.128

  The public laws as printed in 1798 began with the colonial charter, which was reenacted “to secure them in the exercise of all their civil and religious rights.”129 Of all the laws passed in that century and still on the books, none restricted the right to keep and bear arms. Even a broad prohibition on any Native American or slave from doing such things as going abroad after 9:00 p.m., or selling alcohol to them, did not mention arms130 The offensive use of arms was restricted beyond the usual crimes of robbery and murder. Dueling was prohibited.131 The sheriff was authorized to disperse twelve or more persons if they were “armed with clubs or other weapons” or thirty or more persons if they were riotously assembled. The sheriff could “require the aid of a sufficient number of persons in arms.”132

  Rhode Island continued to rely on its colonial charter in the Revolution and until adoption of its first constitution in 1842. But lack of a constitution and bill of rights of its own did not dissuade Rhode Island from rejecting the federal Constitution until after the Bill of Rights had been proposed.

  ON THE EVE OF THE FEDERAL CONVENTION

  Additional developments took place on the eve of the 1787 federal convention at Philadelphia that illuminate the nature of the right to keep and bear arms. In the Virginia General Assembly, a Committee of Revisors had for several years been drafting restatements of statutory law for the Commonwealth. Thomas Jefferson played the leading role, with George Wythe and Edmund Pendleton also participating. One of the committee’s products, the Bill for Preservation of Deer, illustrates the common linguistic usage of the term to “bear arms.”133

  The bill was presented to the whole House in 1785 by James Madison, who would later become draftsman of the Second Amendment. The bill provided for deer hunting seasons outside one’s enclosed land and punished violations as follows:

  Whosoever shall offend against this act, shall forfeit and pay, for every deer by him unlawfully killed, twenty shillings, one half thereof to the use of the commonwealth, and the other half to the informer; and moreover, shall be bound to their good behaviour; and, if within twelve months after the date of the recognisance he shall bear a gun out of his inclosed ground, unless whilst performing military duty, shall be deemed a breach of the recognisance, and be good cause to bind him anew, and every such bearing of a gun shall be a breach of the new recognisance and cause to bind him again.134

  The bill followed legislation earlier in the century that sought to halt the alarming depopulation of deer. While it deleted as a penalty the “twenty lashes, on his or their back, well laid on” of the colonial act,135 the bill imposed a monetary fine and placed the violator on his good behavior. A violator who, within a year, “shall bear a gun out of his inclosed ground, unless whilst performing military duty,” would be deemed as having breached his recognizance. A “recognisance” is an obligation one acknowledges before a court or magistrate of doing or not doing some act.136 Breach of the recognizance in this case would have required going before a magistrate, being admonished not to hunt deer unlawfully, and binding oneself to future good behavior.

  Two aspects of the bill offer insights into the perceived nature of the right to bear arms. First, the bill would have prohibited the bearing only of “a gun,” not of “arms” in general.137 In the linguistic usage of the time, “guns” were distinguishable from “pistols.”138 Given its purpose to protect deer, the bill would not have prohibited violators from bearing pistols, which were unsuitable for hunting deer but which could be lawfully carried for self-defense. Even so, the House was apparently unwilling to restrict the places where game violators bore their guns, and no further legislative action was taken after the bill was read twice.139

  Second, the bill would have put a game violator on his good behavior not to “bear a gun out of his inclosed ground, unless whilst performing military duty,” and bind him to his good behavior anew for “every such bearing of a gun.” To Jefferson, Madison, and their contemporaries, to “bear” a firearm meant broadly to carry it in one’s hands or on one’s person, as for instance a deer hunter would do. The term “bear arms” was not restricted to militia service in that the bill specifically addressed the “bearing of a gun” by “any person” when not “performing military duty.”140

  Another 1785 Virginia bill, which was enacted, sheds insight on the meaning of the right to “keep” arms. Both well before and after this period, Virginia law provided that “no negro or mulatto shall keep or carry any gun, powder, shot, club, or other weapon whatever,” except that “every free negro or mulatto, being a housekeeper” may “keep one gun, powder and shot,” and “a bond or free negro” may “keep and use” a gun by license at front
ier plantations.141 The 1785 enactment stated: “No slave shall keep any arms whatever or pass unless with written orders from his master or employer, or in his company with arms from one place to another.”142 Jefferson penned an outline of the new law that included the words : “no slave to be witness[,] . . . not to keep arms[,] not to pass with arms.”143

  Under Virginia law, the citizen had a right to keep arms, the slave did not. To “keep arms” was an activity engaged in by individuals at large and had no restrictive military connotation. As the above game bill illuminates, to “bear arms” referred to the carrying of arms by any person, whether a hunter or a person on military duty.

  Thus was the status quo when the delegates to the federal constitutional convention assembled at Philadelphia. The mixed state approaches—some having, others eschewing, a declaration of rights—would be reflected as the incipient question loomed: Should the federal Constitution have a bill of rights?

  The Constitution and Compromise

  CHAPTER 8

  A Constitution with No Bill of Rights ?

  THE CONVENTION of delegates that met on May 25 through September 17, 1787, at Philadelphia were determined to go far beyond the Articles of Confederation in formulating a constitution that would consolidate federal power.1 But the Articles and initially the Constitution would have one thing in common: lack of a bill of rights.