Early American Gun Regulation and the Second Amendment: A Closer Look at the Evidence

The scholarly debate over the meaning of the Second Amendment and the scope of gun regulation has been marred by ideological distortions. Michael Bellesiles, an ardent supporter of collective rights theory, argued that state control over weapons was virtually unlimited. Now Robert Churchill, a champion of individual rights theory, stakes out an equally bold position. In his view, a distinct and separate right to keep arms evolved under American law. According to this new variant of individual rights theory, the state might regulate bearing arms, but it was prohibited from regulating the right to keep arms.[1]

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In a short response it is impossible to expose all of the problems in Churchill’s interpretation. Consider his discussion of the thought of Scribble Scrabble, a newspaper essayist who wrote about the meaning of the Massachusetts State Constitution’s provision on arms bearing. Scribble Scrabble explicitly discussed the scope of state power over non-military weapons. Churchill claims that “Scribble Scrabble conceded that such subsidiary uses of arms might fall within the legislature’s police power.” Here is what Scribble Scrabble said about the scope of the state’s power to regulate firearms:

The Bill of Rights secures to the people the use of arms in common defense; so that, if it be an alienable right, one use of arms is secured to the people against any law of the legislature. The other purposes for which they might have been used in a state of nature, being a natural right, and not surrendered by the constitution, the people still enjoy, and [may?] continue to do so till the legislature shall think fit to interdict.

Rather than reluctantly concede that the non-military use of arms might fall within the state’s police power, Scribble Scrabble unambiguously asserts that it does.[2] The right to keep arms for civilian purposes was not removed from the sphere of legislative power, it was subject to the full scope of the state’s ample police powers. Rather than support Churchill’s individual rights view, Scribble Scrabble articulated a civic model of arms bearing. The only weapons singled out for constitutional protection were those connected to militia service, simliar to those used in the Revolutionary War.

For those familiar with eighteenth-century modes of legal reasoning and analysis, there is nothing surprising about this understanding of the state’s power to regulate firearms. Scribble Scrabble simply asserted a basic principle of common law. Until the legislature acted, citizens were free to keep and use any arms they desired. Once the legislature acted, however, the power to regulate firearms was considerable. The scope of this power was not, as Bellesiles suggested, nearly unlimited. Any law, including firearms regulations, had to be aimed at a legitimate public purpose and had to be consistent with reason. Weapons related to militia service clearly enjoyed greater protection and were not subject to the same level of regulation.[3]

The failure to distinguish between the constitutional right to keep and bear arms and a common law right to own and use firearms is a major flaw in individual rights scholarship, including Churchill’s essay. One does not need to look hard to find evidence that orthodox legal theory in early America viewed these two concepts as distinct.[4] One can find clear confirmation of this view in the notorious case of Commonwealth v. Selfridge, the most important murder trial of the early republic. The right to keep and carry firearms was the central issue in the case. In the course of the trial, Selfridge’s lawyer conceded that “every man has a right to possess military arms” and “to furnish his rooms with them.” Yet the defense also recognized that the ownership and the use of non-military weapons were not constitutionally protected. Rather than assert a constitutional claim, the defense framed a common law argument on behalf of his client. Selfridge’s attorney argued “there is no law written or unwritten, no part of the statute or common law of our country which denies to a man the right of possessing or wearing any kind of arms.” Given this fact, it was indisputable that “in every free society a man is at liberty to do that which the law does not interdict, nor can the doing that which is not forbidden be imputed as a crime.” The acquittal in the Selfridge case made perfect legal sense. Selfridge had not broken any law.[5]

The interesting question for historians is what happened when legislatures enacted laws that severely limited the right to own and use weapons intended primarily for self-defense. During the Jacksonian era, this is precisely what happened as states reacted to a widespread perception that handguns and bowie knives posed a serious threat to social stability. Legislatures acted on this perception by passing the first comprehensive laws prohibiting handguns and other concealed weapons.[6] Most of the legal challenges to these gun/knife control statutes were dismissed by the courts, including the case Churchill uses as one of the anchors for his argument, Aymette v. State. According to Churchill, Aymette “found within the constitutional right to keep and bear arms an individual citizen’s right to own guns, grounded in an American rejection of English precedent.” Once again, Churchill’s thesis rests on a misreading of the evidence. Aymette’s distinction between a right to keep and bear arms only referred to military-style weapons needed for militia service. The court rejected the argument that non-military weapons had any claim to constitutional protection. Churchill’s summary of the court’s ruling ignores the crucial passage in the court’s decision that clearly establishes that the right to keep arms referred to militia-style weapons, not pistols, bowie knives, or other weapons intended primarily for individual self-defense. The court did not mince words when it came to asserting this vital distinction.

The legislature, therefore, have a right to prohibit the wearing or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defense. The right to keep and bear arms for the common defence is a great political right. It respects the citizens on the one hand and the rulers on the other. And although this right must be inviolably preserved, yet, it does not follow that the legislature is prohibited altogether from passing laws regulating the manner in which these arms may be employed.[7]

The right to bear military weapons was subject to reasonable regulation. Aymette did not establish a general constitutional right to keep arms, it clearly rejected such a right. The unqualified right to keep arms only applied to keeping weapons related to militia service. Limits on non-military weapons were defined by the general scope of the police power. Aymette’s conception of the right to keep and bear arms expounded a civic conception of this right, not an expansive individual rights conception.[8]

Churchill’s discussion of the constitutional theory of the influential Virginia judge St. George Tucker presents a different set of evidentiary and interpretive problems. Rather than explore the underlying architectonic structure of Tucker’s thought, Churchill plucks quotes out of context. One cannot hope to understand Tucker’s view of the Second Amendment without reconstructing the whole structure of his constitutional theory. The proper place to begin any analysis of Tucker’s thinking about the right to bear arms is his unpublished William and Mary law lectures delivered shortly after the Second Amendment was ratified. Although individual rights scholars have invoked Tucker, they have never consulted his earliest writing on the subject. Here is what Tucker said about the Second Amendment:

If a State chooses to incur the expence of putting arms into the Hands of its own Citizens for their defence, it would require no small ingenuity to prove that they have no right to do it, or that it could by any means contravene the Authority of the federal Govt. It may be alleged indeed that this might be done for the purpose of resisting the Laws of the federal Government, or of shaking off the Union: to which the plainest answer seems to be, that whenever the States think proper to adopt either of these measures, they will not be with-held by the fear of infringing any of the powers of the federal Government. But to contend that such a power would be dangerous for the reasons above-mentioned, would be subversive of every principle of Freedom in our Government; of which the first Congress appear to have been sensible by proposing an Amendment to the Constitution, which has since been ratified and has become a part of it, viz. “That a well regulated militia being necessary to the Security of a free State, the right of the people to keep & bear Arms shall not be infringed.[9]

Tucker viewed the Second Amendment as a concession made to Anti-Federalists to assuage their fears that the state militias might be disarmed. Tucker’s comments are not only the earliest known commentary on the meaning of the Second Amendment by an important legal theorist, but they provide one of the most forceful statements of a states’ rights conception of this provision of the Bill of Rights. There is nothing in Tucker’s earliest writings to support Churchill’s claims about an expansive individual right to keep arms.

Tucker’s thinking on this issue obviously evolved in the years between writing his law lectures and publishing his monumental study of Blackstone in 1803. In his published work, Tucker greatly expanded his original discussion of the Second Amendment and elaborated his original thinking in light of the constitutional and political developments of the 1790s. Tucker did not abandon his earlier belief that the Second Amendment was a right of the states, but he did develop another aspect of the right to bear arms in conjunction with his evolving views of judicial review. Contrary to the claims of much recent individual rights scholarship, including Churchill, Tucker was not worried about the danger of individual disarmament; he was concerned about the potential threat to the right to bear arms in a well-regulated militia controlled by the states. It was in this context that Tucker developed the notion that one might appeal to the federal courts to protect a right to keep and bear arms in the militia.[10]

The one formulation of the right to bear arms that does not appear in Tucker’s analysis is the individual rights view that Churchill and others have attributed to him. The fact that Tucker believed that the Second Amendment functioned both as a civic right and a right of the states does not mean that the Virginian was unaware of the importance of the individual right of self-defense. This right continued to be protected by common law. The bulk of Tucker’s five-volume treatise, it is worth recalling, was not a study of constitutional law, but common law. Churchill and other individual rights theorists have been so eager to find a constitutional right to keep arms that they have ignored the centrality of the common law to early American attitudes about guns.

Tucker’s constitutional theory provides little support for Churchill’s central contention that a distinct constitutional right to keep arms evolved separately from the right to bear arms. The one fascinating exception to this general rule was racially based limits on keeping arms. Although they had been constitutionally prohibited from “serving in the militia, except as drummers or pioneers,” Tucker noted that “free negroes and mulattoes” were “enrolled in the lists of those who bear arms, though formerly punishable for presuming to appear at muster-field.” Race-based restrictions on the use of firearms had a long history in Virginia. Under state law “all but house-keepers, and persons residing upon the frontiers are prohibited from keeping or carrying any gun, powder, shot, club, or other weapon offensive or defensive.” Tucker did not describe the situation of blacks on the frontier as an example of keeping and bearing arms; he wrote of “keeping or carrying any gun.” Tucker discussed a right to “keep arms” in his plan for emancipation. He recommended prohibiting any “negroe or mulattoe” from “keeping, or bearing arms.” This distinction reflected the situation free blacks might face after emancipation. Tucker recommended that they be prohibited from keeping arms in their home, or from appearing at muster and being issued arms. This is the only example in Tucker’s voluminous writing in which he adopted a formulation similar to Churchill’s idea of a separate and distinct right to keep arms.[11]

It is certainly true that Thomas Jefferson sought something like a separate right to keep arms in his alternative proposal for the Virginia Declaration of Rights. But he failed to have such a right included in the final draft. Indeed, no state constitution in the Founding era asserted a separate right to keep arms. Nor did the Second Amendment cleave the right to keep arms from the obligation to bear them as part of the militia. While citizens might make use of privately owned militia-weapons for a variety of civilian purposes, the constitutional protection these weapons enjoyed was linked to a specific purpose, the maintenance of a well-regulated militia.[12]

Churchill is certainly right when he asserts that Americans rejected British-style game laws and domestic disarmament. He correctly faults Bellesiles for not appreciating this important difference between British and American thinking on this issue. The rejection of domestic disarmament did not, however, mean that most Americans had embraced a decidedly modern individual rights view of the Second Amendment. The new civic rights model that Churchill challenges was designed to explore the middle ground between these two opposing theories. Churchill’s efforts to rehabilitate the individual rights model by conjuring up a separate right to keep arms requires him to consistently twist the evidence to fit his theory. Rather than refute Michael Bellesiles, Churchill has produced a mirror image of his distorted account of the early history of gun regulation. The state’s power over guns was not nearly as robust as Michael Bellesiles suggested, nor was it as limited as Robert Churchill maintains. The historical evidence points toward a middle ground. Militia arms, muskets and rifles, were constitutionally protected because they were necessary for a well-regulated militia. In evaluating gun laws, antebellum courts developed a two-tier model of review. The right to keep military-style weapons enjoyed the broadest protection, and the right to bear them was more limited in nature. Pistols, bowie knives, and other weapons with little connection to the goal of creating a well-regulated militia had no special constitutional protections but were subject to the state’s robust, but not unlimited, police powers.[13]

The new civic model of the Second Amendment has shattered the simple dichotomy that has governed this debate for too long. Further refinement of this paradigm is certainly needed. Proponents of the civic rights model will need to be aware of the dangers of overstating the hegemonic character of this new paradigm. Although the civic model clearly emerged as the dominant framework for antebellum state jurisprudence, the rival states’ rights and individual rights models also continued to be important parts of the constitutional landscape. Future scholarship will need to recognize the existence of multiple constitutional discourses on the right to bear arms in early America. Charting how these different discourses vied for dominance and how they evolved over time presents a new set of challenges to those interested in writing a genuinely historical account of the Second Amendment and gun regulation.[14]

Saul Cornell is an associate professor of history at The Ohio State University and director of the Second Amendment Research Center, John Glenn Institute <[email protected]>. He thanks Christopher Tomlins and Gerald Leonard for helpful suggestions and the other participants in this forum, Robert Churchill, David Konig, and William Merkel.

Notes

1. Michael A. Bellesiles, “Gun Laws in Early America: The Regulation of Firearms Ownership, 1607–1794,” Law and History Review 16 (1998): 567–89. Churchill’s primary goal appears to be giving academic legitimacy to the insurrectionary ideology of the modern militia movement; see Robert H. Churchill, “The Highest and Holiest Duty of Freemen”: Revolutionary Libertarianism in American History” (Ph.D. diss., Rutgers, 2001). For criticism of law office history on both sides of this debate, see Saul Cornell, “Don’t Know Much About History”: The Current Crisis in Second Amendment Scholarship,” Northern Kentucky Law Review 29 (2002): 657–81. Rather than seek a usable past, scholars interested in contemporary gun issues ought to focus their attention on policy questions and jurisprudential issues.
2. “Scribble Scrabble,” Cumberland Gazette, January 26, 1787; “Scribble-Scrabble,” ibid., December 8, 1786
3. For a good synthesis describing the importance of the common law to American legal thinking in the Founding era, see Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004). The notion of liberty articulated by Scribble Scrabble is consistent with the account of John Phillip Reid, The Concept of Liberty in the Age of the American Revolution (Chicago: University of Chicago Press, 1988).
4. Don B. Kates, “The Second Amendment and the Ideology of Self-Protection,” Constitutional Commentary 9 (1992): 87–104; Nelson Lund, “The Second Amendment, Political Liberty, and the Right to Self-Preservation,” Alabama Law Review 39 (1987): 103–30. The distinction between the common law right of self-defense and the political right to have arms for common defense was central to Blackstone; on this point see Steven J. Heyman, “Natural Rights and the Second Amendment” Chicago Kent Law Review 76 (2000): 237–90.
5. Trial of Thomas Selfridge, Attorney at Law, Before the Hon. Isaac Parker, Esq, For Killing Charles Austin…. (Boston, 1806), 41, 137, 128, 149.
6. Saul Cornell and Nathan Dedino, “A Well Regulated Right: The Early American Origins of Gun Control,” Fordham Law Review 73 (2004): 487–529. This perception may not have been accurate according to Randy Roth, whose forthcoming study of violence in early America will resolve this issue.
7. Aymette v. State, 21 Tenn (2 Hump) 154 (1840) at 159.
8. Ibid.
9. St. George Tucker Notebooks, Box 63, vol. iv, pp. 127–28, Tucker-Coleman Papers, Swem Library College of William and Mary; St. George Tucker, Blackstone’s Commentaries: with Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia …, 5 vols. (1803). For a detailed examination of the role of the Second Amendment in Tucker’s evolving constitutional theory, see Saul Cornell, “St. George Tucker and the Second Amendment: Original Understandings, and Modern Misunderstandings,” William and Mary Law Review 47 (2006): 1123–56.
10. Churchill’s use of Tucker replicates the anachronistic readings of many legal scholars; see, for example, Randy E. Barnett, “Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?” Texas Law Review 83 (2004): 237–77; David B. Kopel, “The Second Amendment in the Nineteenth Century,” Brigham Young University Law Review 4 (1998): 1359–545; Randy E. Barnett and D. B. Kates, “Under Fire: The New Consensus on the Second Amendment,” Emory Law Journal 45 (1996): 1139–259.
11. St. George Tucker, A Dissertation on Slavery: With a Proposal for the Gradual Abolition of it, in the State of Virginia (1796) in St. George Tucker, View of the Constitution, ed. Clyde Wilson ( Indianapolis: Liberty Fund, 1999 ), 408–9, 422, 441.
12. Saul Cornell, “A New Paradigm for the Second Amendment,” Law and History Review 22 (2004): 161–67.
13. Churchill’s essay has convinced me that fowling pieces would probably have been included under the scope of constitutional protection. Hand guns, however, would not have enjoyed any constitutional protection.
14. H. Richard Uviller and William Merkel, The Militia and the Right to Arms; or; How the Second Amendment Fell Silent (Durham, N.C.: Duke University Press, 2002) and David Konig, “The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of ‘the Right of the People to Keep and Bear Arms,'” Law and History Review 22 (2004): 119–59. For an exploration of the range and evolution of American thinking on the meaning of the right to bear arms, see Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (New York: Oxford University Press, 2006).

By SAUL CORNELL