The Founders' Second Amendment Page 3

  Lord Hillsborough’s June 8 order to call in the troops was received by General Gage by August 31, when Gage sent his aide-de-camp to confer with Governor Bernard concerning the number of troops needed.37 Gage sent for two regiments from the Halifax garrison, one of which would be quartered in Boston and the other at Castle William.38 Thereafter, Bernard leaked the news that troops were coming, “A B.C.” stirred the pot with charges that the inhabitants would be disarmed and martial law declared, and the rest of the uproar described at the beginning of this chapter occurred.

  Once the troops had arrived in Boston, any pleas that the colonists made to the king to reconsider the troops’ unpopular presence fell upon deaf ears.39 Such was the subject of an article by “A North-American,” who decried Parliament’s disregard for the colonists’ basic rights as set forth in numerous petitions and the fact that “the most vigorous measures are pursuing to inforce obedience, and non-resistance to them by the dint of military power.”40 That author also found the reasons given for the British troops’ presence to be highly implausible:

  The Pretence for a Military Establishment on this Continent, was for its Protection and Defence.—But the mask is now taken off, and the cat let out of the bag entirely,—witness the warlike preparations and threats against our brethren of Boston, for having dared, with a modest freedom, and becoming firmness, to assert their inestimable and indefeasible rights ....

  An Act of Parliament was passed full as oppressive as the Stamp-Act .... But now the detestable Purpose is known (tho’ before only suspected) for which a large Standing Army is quartered in America.—That they may be ready on all occasions to dragoon us into any measures, which the arbitrary tools of Ministerial Power may think fit to impose.41

  Reports of acts of violence by the soldiers against civilians began to appear. The following accounts gave details of abuses but did not identify the victims:

  The inhabitants of this town have been of late greatly insulted and abused by some of the officers and Soldiers, several have been assaulted on frivolous Pretences, and put under Guard without any lawful Warrant for so doing. A Physician of the Town walking the Streets the other Evening, was jostled by an Officer, when a Scuffle ensued, he was afterwards met by the same Officer in Company with another ... who repeated his blows, and as is supposed gave him a stroke with a pistol, which so wounded him as to endanger his life. A Tradesman of this town ... in his way home, had a thrust in the breast with a bayonet from a soldier; another person passing the street was struck with a musket, and the last evening a Merchant of the Town was struck down by an officer who went into the Coffee-House .... [A] little Time will discover whether we are to be governed by the Martial or the Common Law of the Land.42

  However, the patriotic press found a hidden irony in the quartering of troops among the populace: It would expose civilians to the soldiers’ methods of training with firearms. One article opined: “Some of the Consequences of bringing the Troops into this Town, in direct violation of the Act of Parliament, ... instead of Quartering them in the Barracks on Castle Island, are likely to be the scattering proper Tutors through the Country, to instruct the Inhabitants in the modern Way of handling the Firelock and exercising the Men ....”43 Actually, the Quartering Act required the colonies to provide the funds necessary to quarter the soldiers, but the Massachusetts House of Representatives refused, calling the tribute illegal.44

  The British “tutors” would increase with the arrival in mid-November of five hundred soldiers from Ireland, bringing the total to some 1,200 men. This was a sizable force, given that Boston’s population was only 20,000.45

  But the colonists, according to a report from London, needed little instruction with firearms: “The total number of the Militia, in the large province of New-England, is upwards of 150,000 men, who all have and can use arms, not only in a regular, but in so particular a manner, as to be capable of shooting a Pimple off a man’s nose without hurting him.”46 The legend of the American sharpshooter was already widespread, even though obviously exaggerated, as was the readiness of the militia.

  Friends of the ministry, speaking in the Parliament, were determined to suppress the unruly colonists. They “spoke with great respect of Governor Bernard,” who was hampered by the constitution of the Massachusetts Bay Colony. This was because the Massachusetts council, “which was intended to support Government,” became “the Means of weakening it, in Consequence of their being elected by a popular Assembly; and the juries being often an instrument of faction, instead of a check upon it, because returned by the towns, and not by the sheriffs.” Members of the ministry also expressed “a determination not to repeal the last Revenue Law, at least till America had submitted.” At bottom, “if the troops were withdrawn, the tumults would be renewed; but an effort of faction perfectly quelled would strengthen the Hands of Government.”47

  Following on the heels of the occupation of Boston came the newspaper column “Journal of the Times,” which became the most widely circulated pre-Revolutionary writing after John Dickinson’s Letters from a Pennsylvania Farmer. The column was written in Boston, covertly sent to New York and published in the New York Journal, and then reprinted in newspapers all over the colonies and even in England. Its anonymous authors probably included Samuel Adams, John Adams, Josiah Quincy, and various editors, the same likely suspects who wrote for the Boston Gazette.48

  The king’s speech of November 8, 1768, at the opening of a new session of Parliament, and related orations in the Houses of Lords and Commons, questioned the loyalty of the colonists. King George III averred that the inhabitants of Boston were “in a state of disobedience to all law and government” and had “a disposition to throw off their dependence on Great Britain.”49 The House of Lords singled out Boston’s resolutions of September 12 (among others) as “illegal and unconstitutional, and calculated to excite sedition and insurrections in his Majesty’s province of Massachusetts Bay.”50 Those were the above-quoted resolutions that included the admonition that every man provide himself with arms and that denounced standing armies.51

  These Parliamentary speeches prompted the writers of the “Journal of the Times” to defend the Boston vote that called upon each citizen to arm and the assembly that adopted the vote. Samuel Adams, author of the following editorial, argued:

  For it is certainly beyond human art and sophistry, to prove the British subjects, to whom the privilege of possessing arms is expressly recognized by the Bill of Rights, and, who live in a province where the law requires them to be equip’d with arms, &c. are guilty of an illegal act, in calling upon one another to be provided with them, as the law directs.... One man has as good reason to affirm, that a few, in calling for a military force under pretence of supporting civil authority, secretly intended to introduce a general massacre, as another has to assert, that a number of loyal subjects, by calling upon one another to provided with arms, according to law, intended to bring on an insurrection.

  It will be equally difficult to prove it illegal, for a number of British subjects, to invite as many of their fellow subjects as they please, to convene and consult together, on the most prudent and constitutional measures for the redress of their grievances ....52

  Adams thus appealed, as had the Boston resolution passed the previous September, to the right to have arms as guaranteed in the English Bill of Rights as well as the duty under Massachusetts law to be armed. An intent to engage in insurrection could not be inferred from the citizens lawfully providing themselves with arms and assembling to consult together respecting their grievances. These were rights of Englishmen, which the colonists held dear.

  Just after Adams’ editorial was published, it was reported in February 1769 that the inhabitants of Boston were being disarmed. After noting that “part of the troops had been quartered in the castle and barracks, and the remainder of them in some old empty houses,” the report continued: “That the inhabitants had been ordered to bring in their arms, which in general they had complied wit
h; and that those in possession of any after the expiration of a notice given them, were to take the consequences.”53 The report did not disclose who issued the order or where the surrender of arms allegedly took place. Perhaps this incident actually occurred, perhaps it was patriot propaganda, or perhaps the facts lie somewhere in between.

  It is difficult to imagine much compliance with such an order, which would have provoked widespread protests. However, disarming the colonists was clearly being contemplated if not executed, and it was discussed on both sides of the Atlantic. The previous fall, news from London included the claim that “orders will soon be given to prevent the exportation of either naval or military stores, gun-powder, &c. to any part of North-America.”54

  The colonists perceived a disarmed populace as typical of the world’s most notorious despotisms, such as that of Turkey. The following illustrates this perception:

  Some time ago the Grand Seignior ordered all his subjects to give up the arms they were possessed of, in order to be publically sold; in consequence of which, great quantities of these arms have been brought to market but they were for the most part in very bad condition. We learn upon this occasion that the Greeks, who inhabit some islands in the Archipelago, refuse to comply with this order, alleging that they want their arms for their own defence.55

  In asserting their right to keep and bear arms, the colonists were well aware of the dangers and risks. As with other types of accidents, mishaps involving firearms were reported. In one tragedy, the wind blew open shutters in a window, knocking over a loaded gun that discharged and killed a 13-year-old girl.56 In another incident, a soldier grabbed a pistol from an African American who was loading it, causing it to fire the ramrod “into the Belly of a young Lad that was passing,” which the jury ruled to be accidental.57 In yet another misfortune, “a Number of Persons had been shooting at Marks” (target shooting) when a 13-year-old—thinking a gun was unloaded—fired it at a girl to frighten her but shot and killed the wife of the gun’s owner.58

  Meanwhile, the British stranglehold on Boston continued to tighten. A meeting of the selectmen of Boston on February 16, 1769—whose attendees included Joshua Henshaw, Joseph Jackson, John Ruddock, John Hancock, John Rowe, Samuel Pemberton, and Henderson Inches—led to the drawing up of an address to be presented to Governor Bernard:

  To behold this Town surrounded with ships of war; and military troops even in a time of peace, quartered in its very bowel; exercising a discipline, with all the severity which is used in a garrison, and in a state of actual war, is truly alarming to a free people. And what still heightens the misfortune is, that our gracious sovereign and his ministers have formed such an idea of the present state of the town, as to induce a necessity of this naval and military force, for the aid of the civil magistrate in the preservation of its peace and good order.59

  In the face of these grievances, the colonists continued to rely on their right to have arms to protect themselves. In an article he signed “E.A.,” Samuel Adams published perhaps the most remarkable analysis of the right to keep and bear arms in the pre-Revolutionary era. He recalled the absolute English monarchs, with their doctrines of nonresistance and divine right, and traced the reigns of “a race of kings, bigoted to the greatest degree to the doctrines of slavery and regardless of the natural, inherent, divinely hereditary and indefeasible rights of their subjects.”60 Quoting freely from William Blackstone, Adams assessed the results of the Glorious Revolution of 1688:

  At the revolution, the British Constitution was again restor’d to its original principles, declared in the bill of rights; which was afterwards pass’d into a law, and stands as a bulwark to the natural rights of subjects. “To vindicate these rights, says Mr. Blackstone, when actually violated or attack’d, the subjects of England are entitled first to the regular administration and free course of justice in the courts of law—next to the right of petitioning the King and parliament for redress of grievances—and lastly, to the right of having and using arms for self-preservation and defence.” These he calls “auxiliary subordinate rights, which serve principally as barriers to protect and maintain inviolate the three great and primary rights of personal security, personal liberty and private property”: And that of having arms for their defence he tells us is “a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”—How little do those persons attend to the rights of the constitution, if they know anything about them, who find fault with a late vote of this town, calling upon the inhabitants to provide themselves with arms for their defence at any time; but more especially, when they had reason to fear, there would be a necessity of the means of self preservation against the violence of oppression.61

  The individual right to have arms for self-defense was a bulwark to guarantee personal security and liberty. This right extended not just to individual preservation but also to collective resistance to oppression. Adams continued even more explicitly as follows:

  Everyone knows that the exercise of the military power is forever dangerous to civil rights .... But there are some persons, who would, if possibly they could, perswade the people never to make use of their constitutional rights or terrify them from doing it. No wonder that a resolution of this rown to keep arms for its own defence, should be represented as having at bottom a secret intention to oppose the landing of the King’s troops: when those very persons, who gave it this colouring, had before represented the peoples petitioning their Sovereign, as proceeding from a factious and rebellious spirit ....62

  The only anticipated source of oppression was, of course, the king’s troops, who were quartered in Boston to back up the king’s tax collectors. Bur Adams rested on the constitutional and legal right of the colonists to arm themselves defensively, and his argument was a sound account of this traditional right as explained by Blackstone, England’s leading legal scholar.

  Letters from London arriving by vessels in this period recount a debate in the House of Commons that discouraged “the least possible hope in America of a repeal of the late Duty Act, until the duty is submitted to,” and made manifest that “the billeting soldiers in the colonies, by act of Parliament, would never be receded from.” Once again, the September 1768 resolution of Boston was attacked: “The invitation to the inhabitants of Massachusetts to provide themselves with arms, &c. from an apprehension of an approaching war with France, was urged to be treason against the state in the persons voting that request.”63

  In yet another installment, the ”Journal of the Times” authors continued to defend the private right to have arms and were more explicit that military oppression could be rightfully resisted:

  Instances of the licentious and outrageous behavior of the military conservators of the peace still multiply upon us, some of which are of such a nature, and have been carried ro so great lengths, as must serve fully to evince that a late vote of this town, calling upon the inhabitants to provide themselves with arms for their defence, was a measure as prudent as it was legal; such violences are always to be apprehended from military troops, when quartered in the body of a populous city; but more especially so, when they are led to believe that they are become necessary to awe a spirit of rebellion, injuriously said to be existing therein. It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.64

  As the days of occupation turned to months, incidents of violence by soldiers against civilians allegedly increased. In April, the Council and selectmen of Boston represented that “the Troops, and Commissioners of Customs, are by sundry violences grieving and irritating the people.”65 The following accounts of attacks on women, whether true or not, undoubtedly fanned the flames of outrage:

  Two
Women the other Evening, to avoid the Solicitations and Insults of a Soldier, took Refuge in a House, at the South End of the Town; the Soldier was so audacious, as to enter with them: the Cries of Distress, brought the Master of the Family into the Entry with a Candle; and before he could know the Occasion of the Noise, he received, a Stroke from the Soldier with his Cutlass, which brought him to the Ground, where he lay Senseless for some Time, and suffered the loss of a Quart of his Blood.—Another Woman not happening to please some Soldiers, received a considerable Wound on her Head with a Cutlass; and a 3rd. Woman presuming to scream when laid hold of by a Soldier, had a Bayonet run through her Cheek.66

  Some reports of this type may have been either exaggerated or invented.67 One clash, however, was real and had legal consequences. On April 19, 1769, a British impressment gang boarded the American brig Pitt Packet as she neared her home port of Marblehead, Massachusetts. In the course of attacking the seamen on board, a British officer fired his pistol at, but missed, Michael Corbet, the sailors’ leader. Corbet harpooned the officer in the throat, killing him.68

  Charged with murder, Corbet and three mates were defended by John Adams and James Otis, two of the colony’s ablest lawyers. Adams argued that the attempted impressment was illegal and that the crew had a right to defend themselves from attack: “Self Preservation is first Law of Nature .... This Right and Duty, are both confirmed by the municipal Laws of every civilised Society.”69 When the officer fired his pistol in Corbet’s face, the seaman “had an undoubted Right ... to have darted a Harpoon, a dagger thro the Heart of every Man in the whole Gang.”70 Adams quoted Sir William Hawkins’ adage that “the killing of dangerous Rioters, by any private Persons, who cannot otherwise suppress them, or defend themselves from Them, inasmuch as every private Person seems to be authorised by the Law to arm himself for the Purposes aforesaid.”71