The Founders' Second Amendment Page 25

  On December 12, Robert Whitehill proposed that a bill of rights be adopted and moved to adjourn the convention for its consideration by the people at large.13 James Wilson opposed the motion, and John Smilie spoke in favor.14 The federalists mustered 46 nays against the motion to the antifederalists’ 23 yeas, and then voted to ratify the Constitution by a like number for and against.15

  The antifederalists then published the Dissent of the Minority, demanding the same bill of rights Whitehill proposed above and summarizing the reasons for amendments. Samuel Bryan, author of the newspaper series “Centinel,” claimed years later to have authored the document. First appearing on December 18, the Dissent was circulated throughout the country.16

  The bill of rights proposed in the convention and then published in the Dissent began by declaring the rights of conscience and freedom of religion, and then proceeded to declare certain procedural rights: trial by jury, and against self-incrimination, cruel and unusual punishments, and warrantless searches.17 It then declared two rights beginning with the clause that “the people have a right” as follows:

  6. That the people have a right to the freedom of speech, of writing, and of publishing their sentiments, therefore, the freedom of the press shall not be restrained by any law of the United Stares.

  7. That the people have a right ro bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers.18

  As to the arms guarantee, the above tracked the language of the Pennsylvania Declaration of Rights of 1776 in guaranteeing the right to bear arms for self-defense and defense of the state.19 Similar to what would become the federal First Amendment, which begins “Congress shall make no law,” the above proposed that a free press “shall not be restrained by any [federal] law” and that “no law shall be passed for disarming the people” as a whole “or any of them”—except that criminals or other dangerous persons could be disarmed. Bearing arms to hunt was not out of place in a bill of rights, in that British authorities had been notorious for disarming the people under the guise of game laws.20

  The above clarifies that the term “bear arms” is not linguistically restricted to matters of the militia or the national defense. Bearing arms for self-defense and hunting were proper purposes. Mention of standing armies and the subordination of the military to the civil power in the same article did not detract from the individual character of the right guaranteed.

  Basic elements of what became the First and Second Amendments may be found in the above proposals. The amendments would be more concise and would exclude the embellishments, but they would still protect the rights to free speech and press and to bear arms.21

  Reflecting the 1776 Pennsylvania guarantee of the right to hunt,22 the next provision of the proposed bill of rights averred:

  The inhabitants of the several states shall have liberty to fowl and hunt in seasonable times, on the lands they hold, and on all other lands in the United States not enclosed, and in like manner to fish in all navigable waters, and others not private property, without being restrained therein by any laws to be passed by the legislature of the United States.23

  The influence of the 1776 Pennsylvania Declaration was no accident. Dissident leaders John Smilie and William Findlay were vigorous followers of Justice George Bryan, leader of the 1776 convention.24 Justice Bryan now played a key role in agitating for amendments to the proposed federal Constitution, and as noted, his son Samuel claimed to have authored the Dissent.25

  Commentary included with the Dissent of the Minority emphasized the necessity for “a bill of rights ascertaining and fundamentally establishing those unalienable and personal rights of men, without the full, free, and secure enjoyment of which there can be no liberty . . . .”26 A free press and bearing arms were of that nature.

  In separate articles, the Dissent sought amendments to the state-federal structure. One of these articles sought to protect the “power” of the “state”—not the “right of the people”—to maintain the militia:

  That the power of organising, arming, and disciplining the militia (the manner of disciplining the militia to be prescribed by Congress) remain with the individual states, and that Congress shall not have authority to call or march any of the militia out of their own state, without the consent of such state, and for such length of time only as such state shall agree.27

  Like other federal powers, Congress’ power over the militia implicated not only the powers reserved to the states, but also personal liberties. The commentary to the Dissent explained:

  The absolute unqualified command that Congress have over the militia may be made instrumental to the destruction of all liberty, both public and private; whether of a personal, civil, or religious nature.

  First, the personal liberty of every man probably from sixteen to sixty years of age may be destroyed by the power Congress have in organizing and governing of the militia. As militia they may be subjected to fines to any amount, levied in a military manner; they may be subjected to corporal punishments of the most disgraceful and humiliating kind, and to death itself, by the sentence of a court martial. . . .

  Secondly, the rights of conscience may be violated, as there is no exemption of those persons who are conscientiously scrupulous of bearing arms. These compose a respectable proportion of the community in the state . . . .

  Thirdly, the absolute command of Congress over the militia may be destructive of public liberty; for under the guidance of an arbitrary government, they may be made the unwilling instruments of tyranny. The militia of Pennsylvania may be marched to New England or Virginia to quell an insurrection occasioned by the most galling oppression, and aided by the standing army, they will no doubt be successful in subduing their liberty and independency . . . .28

  The above proposals by the minority of the Pennsylvania convention constituted the first demand by any part of a ratifying convention for a declaration of individual rights, such as a free press and bearing arms. They were losers in the debate only temporarily, for a federal bill of rights with such liberties would ultimately be adopted. They ultimately lost only regarding their demand for a detailed declaration of reserved state powers, including state militia powers.

  Pennsylvania antifederalists continued to agitate for amendments. One concisely expressed their attitude toward gunpowder and lead as follows: “the sons of freedom . . . may know the despots have not altogether monopolised these necessary articles.”29

  James Madison sent a copy of The Federalist No. 46, which argued that Americans had “the advantage of being armed” over monarchies “afraid to trust the people with arms,” to Tench Coxe, who found them “very valuable papers” and used the ideas in his own writings.30 Coxe responded to the Dissent of the Minority under the pen name “A Pennsylvanian” in “To the Citizens of the United States, III,” published in the Pennsylvania Gazette, February 20, 1788. He wrote as follows:

  The power of the sword, say the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for the powers of the sword are in the hands of the yeomanry of america from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American . . . . [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.31
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br />   The contrast could not be starker between the federal and state governments and “the people,” consisting of each individual “American” in possession of his militia arms. The above respective essays by Madison and Coxe illustrate the cross-fertilization of federalist arguments as applied to the right to keep and bear arms.

  “A Farmer,” responding to another Coxe critique of the Minority, wrote in the Philadelphia Freeman’s journal: “It is only free republics that can completely and safely form a federal republic: I say free republics, for there are republics who are not free, such as Venice, where a citizen carrying arms is punished with instant death . . . .”32 Venice’s law imposing capital punishment for bearing arms was well known from Montesquieu.33

  In a different twist to the same theme, a writer in the Pennsylvania Gazette criticized “the loyalists in the beginning of the late war, who objected to associating, arming and fighting, in defence of our liberties, because these measures were not constitutional. A free people should always be left . . . with every possible power to promote their own happiness.”34

  In The Government of Nature Delineated, published in late April 1788, one “Aristocrotis” warned that a standing army and the select or active militia under federal control would “quell insurrections that may arise in any parts of the empire on account of pretensions to support liberty, redress grievances, and the like.”35 “The second class or inactive militia, comprehends all the rest of the peasants; viz., the farmers, mechanics, labourers, & c. which good policy will prompt government to disarm. It would be dangerous to trust such a rabble as this with arms in their hands.”36

  Such antifederalist agitation continued as other state conventions met in the coming months. Refusing to concede defeat, dissident Pennsylvanians gathered at the Harrisburg convention which, on September 3, 1788, reiterated the call for amendments. Instead of a declaration of specific rights, the convention would have incorporated all of the rights declared in the state bills of rights: “that every reserve of the rights of individuals, made by the several constitutions of the states in the Union, to the citizens and inhabitants of each state respectively, shall remain inviolate, except so far as they are expressly and manifestly yielded or narrowed by the national Constitution.”37 In a separate series of amendments on the structure of government, the following (which originated in the Virginia convention) was proposed: “That each state, respectively, shall have power to provide for organising, arming, and disciplining the militia thereof, whensoever Congress shall omit or neglect to provide for the same.”38 Thus, individual rights were sharply contrasted from state powers, a linguistic usage that would prevail in the ratification struggle.

  NEW JERSEY

  The third state to ratify the Constitution was New Jersey, which did so on December 18, 1787, with minimal debate. New Jersey had no bill of rights in its own constitution and did not demand one for the federal Constitution.39

  George Mason’s objections to the Constitution began with the observation that “there is no Declaration of Rights,”40 but the day after that state ratified, the New jersey journal published a reply arguing that rights must not be restricted by putting them in a written straightjacket:

  The people, or the sovereign power, cannot be affected by any such declaration of rights, they being the source of all power in the government; whatever they have not given away still remains inherent in them . . . . In England the king claims the sovereignty and supports an interest in opposition to the people. It becomes, therefore, both their interest and their duty, at every proper opportunity, to obtain a declaration and acknowledgment of those rights they should hold against their sovereign. But in America . . . the people hold all power, not by them expressly delegated to individuals, for the good of the whole.41

  GEORGIA

  The date set for the opening of the Georgia convention to consider ratification of the federal Constitution passed without a quorum being reached. A newspaper explained: “Our lower country members are tardy, and our upper ones are generally engaged in defending their families and property on the frontiers.”42 When the convention met and adopted the federal Constitution unanimously on January 2, 1788, without proposing a bill of rights, there was obviously one right the delegates would have deemed basic. A settler’s family without firearms in a war with Native Americans would have been deemed a massacre waiting to happen. The state’s seizure of tribal lands had recently provoked the killings of settlers.

  The federalist argument that the Constitution needed no bill of rights was at home in Georgia, whose state constitution contained no enumeration of rights. In response to the proposal that the federal Constitution declare a free press and jury trial inviolate, one Georgian replied: “What control had the federal government upon sacred palladium of national freedom? . . . The very declaration would have been deemed nugatory, and an implication that some degree of power was given. In short, everything that is not reserved is given.”43

  CONNECTICUT

  Connecticut ratified next, on January 9, 1788, without suggesting any amendments. One writer argued that “the populace will lose no power, nor any right or privilege which they have ever have ever held sacred and dear.”44 As for the claim that Congress could turn the militia into a select force resembling a standing army, it was argued: “The militia comprehends all the male inhabitants from sixteen to sixty years of age. . . . Against whom will they turn their swords? Against themselves!—to execute laws which are unconstitutional, unreasonable, and oppressive upon themselves!”45

  Another contended that a declaration was unnecessary because the Congress would have no power over rights. “There is no declaration of any kind to preserve the liberty of the press, etc. Nor is liberty of conscience, or of matrimony, or of burial of the dead; it is enough that Congress have no power to prohibit either.”46 Later, when the governor of North Carolina sent Connecticut Governor Samuel Huntington a proposed bill of rights including guarantees for the press and arms, the latter responded:

  A Bill of Rights in former times hath been judged necessary, bur in this enlightened age, when it seems a self evident truth . . . that all right and authority in Government is derived from the People, and may be resumed whenever the safety or happiness of the People renders it necessary; is it necessary, or expedient, for them to form a Bill of Rights which seems at least to call in question a truth of such importance and which ought ever to be held indisputable?47

  MASSACHUSETTS

  The demand for a bill of rights reached a high pitch in Massachusetts before the ink on the proposed Constitution had time to dry. A “ships’ news” satire published in the Boston Independent Chronicle on October 25, 1787, reported on a list of packages found aboard the new ship Federal Constitution, when it was searched for possible contraband. “One folio volume, marked, no bill of rights,” was opened and found to contain “a blank volume.”48 A chest contained “thirteen stands of arms,” about which the officers of the ship argued that “it was absolutely necessary to carry arms for fear of pirates, & c. and . . . their arms were all stamped with peace, that they were never to be used but in case of hostile attack, that it was in the law of nature to every man to defend himself, and unlawful for any man to deprive him of those weapons of self defence.” Another trunk contained “the habeas corpus act.”49 Poking fun at incipient proposals for a bill of rights was fair game.

  Stringent opposition to a constitution with no bill of rights existed in Massachusetts. Federalist leader Theodore Sedgwick wrote to Henry Van Schaack on November 28 about an opponent who

  is making every possible exertion & by the meanest and basest arts stimulating pub[I]ick passions. He says that it will be a government for great men & law[y]erss. That the people will be disarmed. That a standing army will be immediately formed &ca. &ca. &ca. With these suggestions & insinuations he goes from house to house.—For God sake come down—I think at present that the friends of the Government are gaining ground but appearances may be deceitful. . . .50

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sp; Antifederalist John DeWitt published a series in Boston that articulated the position against the Constitution and in favor of a bill of rights. In an essay against standing armies appearing in the American Herald on December 3, he stated: “It is asserted by the most respectable writers upon government, that a well regulated militia, composed of the yeomanry of the country, have ever been considered as the bulwark of a free people.”51 In a revised version published a few weeks later, he added: “Tyrants have never placed any confidence on a militia composed of freemen.”52 DeWitt predicted that Congress “at their pleasure may arm or disarm all or any part of the freemen of the United States, so that when their army is sufficiently numerous, they may put it out of the power of the freemen militia of America to assert and defend their liberties. . . .”53

  This was only one of countless salvos against standing armies. Typical is the letter from “Candidus I”—believed by federalists to be a “tool” of Samuel Adams—published in the December 6 Independent Chronicle complaining “that a bill of rights is wanted” and warning of Congress’ powers to raise armies and to tax.54 By contrast, “Cassius VI” wrote in the Christmas Day issue of the Massachusetts Gazette: “Consider that those immortal characters, who first planned the event of the revolution, and with arms in their hands stepped forth in the glorious cause of human nature, have now devised a plan for supporting your freedom, and increasing your strength, your power and happiness.”55

  The Massachusetts ratifying convention met from January 9 through February 7. Early on, William Symmes came out swinging, warning that the revenue power of Congress “is a power, sir, to burden us with a standing army of ravenous collectors . . . when the Congress shall become tyrannical, these vultures, their servants, will be the tyrants of the village, by whose presence, all freedom of speech and action, will be taken away.”56 He predicted, “who shall dare to gainsay the proceedings of this body, when according to the course of nature it shall be too firmly fixed in the saddle to be overthrown by any thing but a general insurrection?”57 (Symmes would later vote to ratify the Constitution.)