Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment

On April 19, 1775, the town of Concord, Massachusetts was the scene of an interesting confrontation. After the militia of Concord and the surrounding towns had driven the British back from the North Bridge, some of the militiamen began to disperse. The wife of Nathan Barrett, captain of one of Concord’s militia companies, spotted one of her husband’s men skedaddling home. She went out of her house to confront him, and when he explained that he was feeling ill, she responded that he must not take his gun with him. When he replied simply, “Yes, I shall,” she exclaimed, “No, stop, I must have it.” The militiaman refused and began to walk off. Mrs. Barrett gave chase, but her quarry was too quick.[1]

The confrontation between Mrs. Barrett, speaking for the community of Concord, and the militiaman captures the clash of community obligation, public safety, private interests, and individual rights that lies at the heart of the legal and historical debate over the meaning of the Second Amendment. For Mrs. Barrett, the militiaman’s gun represented his duty to join with his neighbors and bear arms in the collective defense of the community. The militiaman did not dispute that obligation: he had turned out with his neighbors to defend the town and headed home only after his company had dispersed. But in his eyes the right to retain possession of the gun transcended its importance in allowing him to meet his communal obligation. The gun was his, and he believed he had a right to keep it.

The confrontation highlights many of the questions central to discerning the meaning of the right to keep and bear arms in early America: Who had the right? What was the relationship between the right to keep and bear arms and the obligation to serve in the militia? How might the state regulate the right? Under what circumstances might an individual be disarmed? Did Americans understand this right differently from their British counterparts?

In the fifteen years since the publication of Sanford Levinson’s “Embarrassing Second Amendment,” the academic literature focused on these questions has grown voluminously.[2] Recent court decisions on the Second Amendment have identified four or five different interpretations in this secondary literature.[3] Nevertheless, the bulk of this scholarly literature can be subsumed within the collective rights and individual rights frameworks. Collective rights scholars argue that the Second Amendment protects the right of states to arm and maintain their militias. Individual rights scholars insist that the amendment protects an individual citizen’s right to own and use guns for a variety of purposes, public and private, subject to little government regulation.[4]

Recently a group of legal historians has offered a fresh approach to answering these questions. Expressing frustration with a seemingly intractable debate between the collective rights and individual rights interpretations of the Second Amendment, these scholars, including Saul Cornell, H. Richard Uviller and William G. Merkel, and David Konig, have sought a “new paradigm.” Proponents of the “new paradigm” view the right to keep and bear arms as the right of persons, exercised collectively, and inextricably linked to the civic obligation of service in a “well regulated militia.” In the words of Saul Cornell, the right to keep and bear arms should be understood as a “civic right.”[5]

This “civic rights” interpretation offers an advance over earlier scholarship, not least because it offers an insight into the confrontation between Mrs. Barrett and the militiaman. If the militiaman’s claim to a right to keep and bear arms was bound to his civic obligation to defend the community, then his right expired at the moment that he retired from the field. This is the essence of Mrs. Barrett’s challenge: “You must not take your gun with you.” But if the value of the new interpretation lies in its explanation of one side of this confrontation, its limitations lie in its failure to explain the outcome: Mrs. Barrett didn’t get the gun.

One might simply view the militiaman’s refusal to surrender his gun as an act of plebeian resistance to a well-understood, “mainstream” legal norm. Saul Cornell and David Konig have both gestured in this direction.[6] The purpose of this essay is to offer a more compelling explanation of the militiaman’s refusal and to suggest that the civic rights model will more fully capture the right to keep and bear arms in early America if it takes both sides of this confrontation seriously.

The explanation of the militiaman’s behavior lies in the development of the law of keeping and bearing arms in early America. In British North America the law departed from English precedent by mandating gun ownership by all free white men. Colonial law required almost all free men to participate in regular military training, with their own arms, for much of their adult lives. These militia laws also incorporated a language that described the “keeping” of arms as a practice incumbent upon every individual member of the body politic. Colonial legislatures did occasionally exercise their military powers to impress guns at moments of public emergency, but the practice of impressment was on the wane by the end of the eighteenth century. Most important, at no time between 1607 and 1815 did the colonial or state governments of what would become the first fourteen states exercise a police power to restrict the ownership of guns by members of the body politic. In essence, American law recognized a zone of immunity surrounding the privately owned guns of citizens. Thus, like most free white men in early America, Mrs. Barrett’s militiaman was accustomed to keeping guns. What’s more, in American legislators’ respect for the practice, he perceived a right to keep arms.

Over the last fifteen years, several scholars interested in the Second Amendment, including Joyce Malcolm, Michael Bellesiles, and Saul Cornell, have examined the legal regulation of the ownership and use of guns in England and America.[7] From this work on gun regulation, three central conclusions have emerged. On the whole, these scholars have portrayed an early America in which guns were subject to pervasive regulation.[8] Further, Malcolm and Bellesiles have concluded that English precedent played an influential role in shaping the early American law of keeping and bearing arms, and David Konig has recently joined in this conclusion.[9] Finally, Bellesiles and Cornell have asserted that in America the colonial and early state governments acted to disarm citizens and non-citizens alike under the exercise of their police powers.[10]

The present reconsideration is based on a full survey of printed session laws pertaining to gun regulation in the thirteen colonies and Vermont between 1607 and 1815.[11] That survey bears out the first of these assertions. Hundreds of individual statutes regulated the possession and use of guns in colonial and early national America. Yet the presentist assertion that “gun control legislation” made a common appearance on colonial and early national statute books, if taken alone, offers a distorted understanding of the nature and extent of gun regulation in early America. A close examination of that legislation suggests that Malcolm, Bellesiles, and Konig have underappreciated the distinctiveness of the universal militia as a colonial institution that had no corollary in the post-medieval British experience. That universal militia fostered in the American colonies an experience of keeping and bearing arms that was distinct from Great Britain in terms of practice, language, and law. Further, in attributing to the colonial and early state governments a broad police power to restrict the ownership of guns, Bellesiles and Cornell have confused the military powers of the state with its police powers and misunderstood the basis on which different categories of inhabitants might be disarmed. They have thus misinterpreted the reach of the police power as exercised in British North America.

This essay first explores the body of colonial and early national militia law as the source of the practice, obligation, and language of keeping arms. The second section compares the legal regulation of gun ownership under the emergency military powers and the civil police powers of the colonial and early national state. It concludes by considering the use of the police power to regulate the use of guns. Finally, the essay considers the significance of this colonial and early national legal context for contemporary understandings of the Second Amendment.

I. The Militia and the Duty to “Keep” Arms in England and America

In 1788, Tench Coxe wrote a series of essays defending the ratification of the Constitution of the United States under the pseudonym “A Pennsylvanian.” In the third essay of the series he responded to the complaint by Pennsylvania Anti-Federalists that the Constitution had given the federal government absolute control over the “power of the sword,” a metaphor for the military powers of the state. To this charge Coxe answered, “it is not so, for the powers of the sword are in the hands of the yeomanry of America from 16 to 60. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be irresistible…. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American.”[12] In describing arms as the “birthright of an American,” Coxe underlined a critical distinction between British and American understandings of the right to keep and bear arms. As Coxe pointed out, that distinction had its origin in the American transformation of the institution of the militia.

As a colonial institution, the American militia was based on English legal precedent but departed from it in several material aspects. From the late sixteenth century onward, English law divided the militia into two distinct formations. These laws required all able-bodied men from sixteen to sixty to appear at a “general muster” for the purpose of enrollment and selection. Such musters took place infrequently and played little role in the actual military training of the militia. Of the total pool of military manpower assembled at the general muster, county officers selected a small “trained band” composed of the most reliable men (socially, politically, and religiously) for actual military training. In the Hundred of Edwinstry in the English county of Hertfordshire, for example, 182 men were selected for service with the trained band, 14 percent of the total able-bodied population of 1302 men “viewed” at the general muster of 1587.[13]

Once county militia officers had selected the trained band, the responsibility for arming the militiamen fell on men of property and on the community as a whole. A series of parliamentary statutes mandated that property holders within certain wealth and property classifications contribute prescribed sets of arms and armor for the use of the trained band. In addition, each parish was taxed to provide additional arms. In contrast with American colonial practice, in England, those who kept arms were not required to bear them in person. Those selected to actually bear arms did not keep them.[14]

This division of responsibility continued throughout the seventeenth and eighteenth centuries. When England modernized its militia laws to meet the burden of the Seven Years War, it retained key aspects of early modern practice. The Militia Act of 1757 ordered the listing of all men from eighteen to fifty except public officers, teachers, clergy, mariners, and apprentices. Of this total population, which probably numbered over a million, only 30,000 were chosen by lot to serve a term of three years. Those chosen could provide substitutes. Those actually serving in the militia trained eighteen days a year. The Crown provided arms and uniforms, which the militiamen drew from central stores for training days only.[15]

By contrast, the militias of the thirteen colonies took on a distinct institutional form, at least by the eighteenth century. In most of the colonies, the militia enrolled all able-bodied free white men between sixteen and sixty. The laws exempted public officers, clergy, and practitioners of certain key professions from training, but required them to possess guns and turn out for service in an alarm.[16] There were some exceptions to this general institutional form. Some states, such as Rhode Island, mandated training only between the ages of sixteen and fifty.[17] Pennsylvania’s Quaker party refused to organize a compulsory militia for the colony until the Revolution.[18] Maryland permitted county officers to choose those eligible for training, a legal device that allowed them to exclude Catholics.[19] Seventeenth-century militia records from Virginia indicate that in that colony some version of the English system of selecting some in the colony to provide arms and others to train persisted until the Militia Act of 1705 established the militia on the same universal footing as other American colonies.[20]

This legislative mandate, subjecting almost all free white men to military training, distinguished the colonies of British North America from England, Ireland, and the British Caribbean.[21] The 1755 Rhode Island census, which reported the total population, the able-bodied adult male population and the membership of the trained band, illustrates the contrast. Rhode Island’s trained band enlisted 5265 men aged sixteen to fifty in 1755, 64 percent of the able-bodied white men aged sixteen to sixty in the colony. Of the remaining third of the able-bodied men in the colony, most had either served prior to reaching the age of fifty or had declined service on grounds of conscience.[22]

In every colony of British North America, militia laws required that these militiamen provide their own arms unless they were too poor to do so. Taken together, probate inventories and extant militia returns and gun censuses demonstrate that most white men in America owned guns and that outside of Quaker-dominated regions most militiamen came armed to muster. The Rhode Island census discussed above tallied guns as well as persons. It shows that Rhode Islanders owned enough guns to arm 61 percent of the able-bodied men in the colony and 95 percent of the trained band. Most studies of colonial probate records find guns in at least two thirds of white male estates. Militia returns from the era of the American Revolution and from 1810 show that over two-thirds of northern militiamen came armed to muster.[23]

In contrast with English law and practice, then, most free white men in colonial America owned guns and trained with them in the militia. Colonial militia laws used a specific language to describe the legal obligation of gun ownership imposed on every individual free white man. In New Jersey, for example, the legislature ordered that every militiaman should “be provided” with arms and ammunition “in his house or place of abode” and imposed a fine whenever “said persons shall be deficient in keeping the arms and stores aforesaid.” South Carolina and Georgia ordered that “every person liable to appear and bear arms … shall constantly keep one gun or musket fit for service” as well as ammunition.[24]

While some states limited this individual duty of keeping arms to those subject to militia training, others did not. Connecticut’s earliest militia law ordered that all persons exempt from militia duty “shall yet in all respects provide, keep and maintain in constant readiness, compleat arms.” In 1684, New York passed a similar provision, ordering that all persons “freed from training by the law, yet that they be obliged to keep convenient arms and ammunition in their houses as the law directs to others.” Delaware law ordered that “every freeholder and taxable,” even those exempt from training, provide himself with arms and “shall be obliged to keep such arms and ammunition by him.” Virginia’s militia law provided that “every person” exempt from mustering “shall always keep in his house or place of abode such arms, accoutrements, and ammunition, as are by the said act required to be kept by the militia of this colony.”[25]

The language of “keeping arms,” then, had a colloquial meaning that applied to individuals outside of the context of militia service. North Carolina’s 1741 slave code, for example, ordered that “no slave shall go armed with gun, sword, club, or other weapon, or shall keep any such weapon.” In 1756, Virginia ordered that no one refusing to take an oath of allegiance “shall or may have or keep in his house or elsewhere … any arms, weapons, gun powder or ammunition.” The first proposal to form a volunteer militia in Pennsylvania also demonstrates how common both the practice and the language of “keeping” arms had become. The author, writing in the Pennsylvania Gazette in 1747, noted that most Pennsylvanians had “a firelock of some kind already in their hands.” He went on to advise that “those who on account of their age or infirmities ought to be excused from the common exercises, yet will do well to keep arms and ammunition in their houses, that when occasion calls, they may either use them if they can or lend them to those who happen to be unprovided.”[26] This language of keeping arms continued into the early national period, though it was not incorporated into the federal militia act of 1792.[27]

In creating the institution of the universal militia, American colonial legislatures fostered the emergence of a populace that was, in Tench Coxe’s words, “accustomed” to owning guns. They also codified a language that described the individual ownership of guns and ammunition as the “keeping” of arms. As we shall see, the manner in which these legislatures approached the regulation of guns may have contributed to the notion, also articulated by Coxe, that Americans were not just accustomed to keeping arms, but “entitled” to do so.

II. The Power to Disarm: Discerning the Limits of the Military and Police Powers of the Colonial State

In December 1775, the loyalist inhabitants of Queens County, New York published a memorial in which they responded to rumors that the patriot authorities preparing the defense of New York City planned to disarm them. The inhabitants protested that they meant their “neighbors, countrymen, and fellow subjects” no harm and that they had armed themselves out of fear “for the safety of ourselves, our families and our property.” Having exercised “the essential privileges of freemen,” they challenged their neighbors to deny the propriety of their actions: “We call upon every man who values himself upon the inheritance of an Englishman, to say what he would do in such a case. Would he suffer himself to be disarmed, and tamely confess himself an abject slave? Certainly no. Can any one then, who feels the spirit of liberty, impose that on us which he had rather die than submit to himself?”[28]

As loyalists, the inhabitants of Queens were especially disposed to attribute their liberties to their inheritance as “Englishmen.” Nevertheless, they articulated a particularly American conception of a right to keep arms. As Lois Schwoerer and Michael Bellesiles have pointed out, English statutes allowed officers of the Crown broad powers to disarm Englishmen on the basis of faith, class, or perceived “dangerousness.”[29] The key to understanding the loyalists’ declaration, then, lies not in an inheritance derived from metropolitan law but in their experience of colonial law.

The Military Power of Impressment

In order to understand how and when early Americans experienced the state’s power to disarm, we must first draw a distinction between the exercise of the state’s civil police powers and the exercise of its military powers. Michael Bellesiles, discussing the impressment of arms in 1998, erroneously identified impressment as a facet of the state’s police power.[30] In Anglo-American law, the state may exercise extraordinary powers and even abridge basic civil liberties like the right to a trial, at moments of military emergency. The practice of impressment is, like the suspension of the writ of habeas corpus, an application of the state’s military power.[31] Impressment, or the commandeering of private property for public use in moments of military necessity, was established in English law as an attribute of the state’s military powers by at least the middle of the seventeenth century. Parliamentary ordinances during the English Civil War gave county lieutenants the power to seize carts, horses, and other transport for forces moving through the countryside and also to seize arms from those refusing to contribute them to the parliamentary cause. The English Militia Act of 1662 codified the impressment of transport by giving county lieutenants the power to compel the contribution of “carts, wagons, wains, and horses for the carrying of powder, match, bullet, and other materials.” Given its origin in the application of martial law, this power was only operative in time of “invasion, insurrection, or rebellion.”[32]

In the American colonies, the power to impress expanded to encompass consumable provisions and the persons and tools of key artisans. Colonial legislatures also codified the impressment of privately owned arms for the first time. Though this might suggest a longer regulatory reach in America, it is probably due to a simple social reality: in America the vast majority of guns lay in private hands. For example, in 1675, the Massachusetts General Court ordered that guns and ammunition be impressed from those exempt from training in order to create town stocks of arms. The breadth of colonial impressment statutes also reflects a greater concern to establish civil supervision over the exercise of military power. Thus colonial statues went into far greater detail concerning the list of items subject to impressments, the procedures to be followed by the military officers impressing them, the local civil officers whose warrants were required before military officers could act, and the rules for appraisal and compensation in case of loss. Virginia’s 1677 “Act Restrayning the Impresse of Tymber, etc.” was an early example of the extensive civil oversight associated with impressment in the colonies.[33]

Despite this concern to legislate the details of civil oversight, impressment retained its close association with martial law and, like the impressment of seamen, served as a profound catalyst of popular resentment. The Virginia Assembly noted in 1684, for example, that many militiamen were refusing to arm themselves “for that their arms have been imprest and taken from them.” In December 1775, Nathanael Greene heard similar complaints about George Washington’s order for the impressment of the private arms of the soldiers about to leave the siege of Boston. According to Greene, the soldiers, mostly from New England, denounced the impressment as “tyrannical and unjust.” Washington himself later complained that those whose arms had been impressed had “in a manner by stealth borne them away” and that new recruits for the army were refusing to bring their own guns into service. Later in the war an officer from Mecklenburg County, Virginia warned that “the frequent impressment of arms from the people has well nigh disarmed the County…. The people hide their arms, and say they will risk their lives, rather than give up what few remain.”[34]

As a consequence of this public resentment, colonial legislators approached the impressment of firearms with discernable wariness. Several colonial legislatures carved out special exemptions concerning the impressment of arms. Virginia wrote such an exemption into the Militia Act of 1705, declaring that arms and ammunition “provided and kept in pursuance of this act … be free and exempted at all times from being impressed upon any account whatsoever.” The 1704 militia law of Maryland similarly ordered that “no … person whatsoever shall presume at any time to seize press or carry away from the inhabitants residents in this province any arms or ammunition of any kind whatsoever.” Both provisions continued in effect until shortly before the Revolution. Under the impressment statutes of these colonies, neither an individual’s person nor any other article of property was similarly exempt.[35]

With the onset of the total military effort required by the American Revolution, the impressment of transport and provisions became routine. American provincial and state governments still hesitated, however, before impressing arms, and acted to limit the scope of the practice where they could. The Connecticut Assembly initially applied the impressment of arms only to “householders and other persons not on the militia roll.” The Massachusetts Provincial Congress considered impressing arms in 1775, but decided instead to “most earnestly advise” residents to sell their spare arms to the state. In New York, the Provincial Council likewise balked at impressing arms, instead imploring inhabitants “to sell such muskets and firelocks as they can spare, retaining arms for their own use.”[36]

Most state governments refrained from impressing arms until the onset of actual invasion. New York finally authorized the impressment of arms a month after the British fleet arrived in New York harbor. Massachusetts delayed its authorization until the fortunes of the Patriot cause were collapsing in November 1776. In the same month Pennsylvania authorized the impressment of arms when raising battalions to defend the state from the British army then marching across New Jersey toward its border. Connecticut cited an invasion that “may be daily expected” in extending impressments to militiamen in 1777. During the Revolution, Virginia also dropped the statutory language exempting arms from impressment, but stipulated that arms might be impressed only if “the invasion or insurrection be so near and pressing as not to allow the delay” required to mobilize the militia.[37]

State governments, then, approached the impressment of arms with far greater reluctance than the impressment of persons or other property. Nevertheless, the exigencies of the war forced the measure on most states at some point during the Revolution. The rapid demise of the practice after the Revolution is thus all the more remarkable. Of ten states that practiced the impressment of arms during the Revolution, eight appear to have permanently discontinued the practice by 1787. Rhode Island, New Jersey, Virginia, and North Carolina, which had placed language authorizing the practice in their militia statutes, repealed or modified that language in the 1780s.[38] New York, Massachusetts, Connecticut, and Pennsylvania, which had authorized the practice as part of specific orders to raise bodies of troops during the war, had all discontinued the practice by 1781. None of them authorized the impressment of arms when raising large bodies of militia for service in 1787, 1794, 1797, 1808, or during the War of 1812.[39] The authority to impress arms remained on the statute books of South Carolina and Georgia, but Georgia repealed it in the first full post-1786 revision of its militia laws, which took place in 1803.[40] The impressment of arms made a brief revival in the Confederacy during the Civil War. After the war, a Tennessee impressment statute was declared in violation of the Tennessee Constitution’s provision protecting “the right to keep and bear arms for the common defense.” More significantly, the Supreme Court of Tennessee referred to the impressment statute as “the first attempt, in the history of the Anglo-Saxon race, of which we are apprised, to disarm the people by legislation.” The decision suggests that by 1866 the colonial practice of impressing guns lay in a distant and unremembered past.[41]

In the eighteenth century it is clear that colonial and state governments did exercise their emergency military powers in a manner that effectively disarmed citizens. Nevertheless, they did so with evident reluctance, probably due to the strong public resentment against such measures. Furthermore, the vast majority of the states appear to have abandoned the impressment of arms in the decade prior to the framing of the Constitution. This general repudiation of the state’s claim on privately owned guns in times of military emergency is itself an important aspect of the legal context of the Second Amendment.

Gun Ownership and the Police Power in Early America

In 1992 William Novak described the police power as “the most far reaching of the state’s reserved powers, and that which comes closest to the essence of governing.” Novak explored the common law roots of the police power and its use in America to promote the public safety, comfort, welfare, health, and morals even at the expense of private rights.[42] Three weeks before describing the right to keep and bear arms as the “birthright of an American,” Tench Coxe wrote an equally expansive description of the police powers reserved to states under the Constitution.[43] Though Coxe and Novak agreed that the police power was both theoretically broad and vigorously applied in early America, some aspects of social behavior remained beyond its regulatory reach. The keeping of arms by members of the body politic was one such behavior.

When considering the reach of the state’s police power to restrict gun ownership in the American context, one must confront its limits in comparison with English practice. In England, Parliament granted officers of the Crown the power to disarm any person they judged “dangerous to the peace of the Kingdom.” Parliament also enacted permanent game laws restricting gun ownership on the basis of wealth. Finally, in 1688, Parliament prohibited any Catholic subject from keeping arms unless they publicly renounced the doctrine of transubstantiation, thus disarming Catholics solely on the basis of faith.[44]

In considering the transfer of this police power to disarm to the American colonies, it is important to note the absence from the colonial context of both game laws limiting the right of gun ownership and the blanket authority to disarm found in English statutes. What took their place in British North America were laws disarming groups on the basis of race and servitude. Almost thirty years ago, Edmund Morgan observed that white Virginians excluded African-Americans, Indians, and indentured servants from the body politic and denied them the most fundamental of rights. In 1998, Michael Bellesiles applied this observation to the issue of gun ownership, demonstrating that most colonial jurisdictions denied these groups the right to keep weapons.[45]

In the conclusion to his 1998 article on gun regulation in early America, Bellesiles offered the disarmament of slaves and other groups outside the body politic as a precedent that might reasonably be applied today to all Americans, including citizens. As a matter of constitutional law, this argument seems overbroad, as it might be applied to any basic right of citizenship. But Bellesiles and Saul Cornell made a much more significant contribution to the Second Amendment debate by identifying American legislation that employed the state’s police power to disarm Catholics, Quakers, and non-associators, populations of free white men entitled to the presumption of membership in the body politic. They concluded that the colonial and early national state’s police power to restrict gun ownership applied to citizens and non-citizens alike, and that conclusion has been broadly accepted in recent scholarship on the Second Amendment.[46]

In British North America, the history of the use of the police power to disarm does not bear out that conclusion. The colonial and early national states consistently refrained from exercising such a power over citizens. In the one instance in which an American colonial government acted to disarm Catholics, it did so on the basis of allegiance, not on the basis of faith. In 1756 Virginia ordered the disarmament of all those refusing the test of allegiance set out in the Parliament’s 1714 “Act for the Further Security of his Majesty’s Person and Government.” That parliamentary statute required all those claiming membership in the British body politic to swear allegiance to the Hanoverian dynasty and to the Protestant succession and to swear an oath abjuring the ecclesiastical authority of the Pope. While the abjuration of the Pope’s ecclesiastical authority touched upon matters of faith, it was consistent with the undivided allegiance to the sovereign that had been the definition of membership in the English body politic since the Reformation. In 1756, Virginia disarmed those individuals refusing this test, exempting only “such necessary weapons as shall be allowed him by order of the justices of the peace at their court, for the defense of his house and person.” The act ordered the justices to return the arms of anyone who voluntarily rejoined the body politic by submitting to the test. Thus, in the only colony disarming Catholics, those Catholics willing to swear undivided allegiance to the sovereign enjoyed a right to keep arms denied them in England.[47]

The history of the disarmament of non-associators during the American Revolution also contradicts the assertions of Bellesiles and Cornell. Cornell has argued that the revolutionary government of Pennsylvania exercised its police powers “to require a political litmus test to own weapons.” Citing Pennsylvania’s Test Act of 1777, Cornell observes that Pennsylvania acted to disarm almost 40 percent of its citizenry.[48] Unfortunately, Cornell’s conclusion is based on a misinterpretation of the Test Act. In fact, when provincial and early state governments disarmed non-associators during the American Revolution, they generally followed the colonial precedent that free white men might be disarmed only if they refused a test of allegiance that defined membership in the body politic.

There is one brief period when this precedent did not hold. Between December 1775 and July 1776, Whig allegiances were in an awkward state of transition. Allegiance to George III was no longer an adequate definition of the body politic, but the colonies had not yet declared themselves to be sovereign states. As a result, there was no new test of allegiance available to provincial legislatures. When called upon by the Continental Congress to disarm non-associators, legislatures enacted a series of measures that ordered the disarmament of those refusing to take up arms against the king. In the absence of any viable test of allegiance, these measures did apply a political litmus test to the keeping of arms. Even so, in the language of these provisions, one can discern an attempt to preserve the connection between the right to keep arms and membership in the body politic. For example, Pennsylvania ordered the disarming of “disaffected” non-associators, but initially balked at ordering “well-affected” non-associators to surrender their arms. Massachusetts ordered the disarming of all those refusing to swear that colonial resistance was “just and necessary,” until the general court acted to restore such non-associators to “the Privileges of a good and free Member of this Community.”[49]

After the passage of the Declaration of Independence, the shift of allegiance was complete, and the states had a legal basis on which to define new bodies politic. Thereafter, the new state governments returned to colonial precedent and framed their police power to disarm around a test of allegiance. Rather than establishing a political litmus test, Pennsylvania’s Test Act of 1777 marks the return to voluntary allegiance as the standard of membership in the body politic. It required all white men over eighteen to swear an oath declaring allegiance to the commonwealth, abjuring all allegiance to the British monarchy, and promising to do nothing injurious to the freedom and independence of the state. The act prohibited those refusing the test from voting, holding office, serving on juries, suing, and transferring land. It also ordered them disarmed. Many Quakers considered the abjuration of the king’s sovereignty to be inconsistent with their religious principles and refused the test. Nevertheless, the oath demarcated the most politically inclusive possible definition of Pennsylvania’s new revolutionary body politic. When the assembly revised the test law in 1786 to try to meet Quaker objections, it declared that any person taking the oath “is hereby declared to be a free citizen of this commonwealth, and intitled to all … the rights and priviledges thereof.”[50]

Pennsylvania’s mode of disarming non-associators by forcing them to voluntarily exclude themselves from the body politic became the standard procedure for using the state’s police power to regulate the ownership of guns. Noting that “in every free state, allegiance and protection are reciprocal,” Maryland instituted a test oath in 1777 and barred those refusing from the basic civil liberties of voting, holding office, serving on juries, suing, and keeping arms. In 1781, the state promised that those non-jurors who agreed to enroll for actual service with the militia would be “restored to all the rights and privileges of a free citizen of this state without exception.” North Carolina followed suit, barring non-testors from basic liberties including the keeping of arms while promising that any who relented would be “held and deemed a good subject of this state, and shall enjoy the privileges thereof.” Virginia also barred recusants from basic liberties. Under Virginia law the expulsion of non-associators from the body politic was ritualized by the requirement that they attend militia muster unarmed, an indignity traditionally imposed on free blacks.[51] Almost every state that acted to disarm non-associators after July 4, 1776 did so according to this principle.[52]

Michael Bellesiles and Saul Cornell, in asserting that colonial and state governments “used their police powers extensively” to regulate gun ownership, have thus offered an incomplete and misleading analysis of the legal history of early American gun regulation. Between 1607 and 1815, in clear contrast to English precedent, the colonial and state governments of what would become the first fourteen states neglected to exercise any police power over the ownership of guns by members of the body politic.[53] By 1787 most American states had also repudiated the military power to seize the privately owned firearms of their inhabitants. These limits on colonial and early state regulation of arms ownership outlined a significant zone of immunity around the private arms of the individual citizen. That zone of immunity, from the civil powers and increasingly from the military powers of the state, lent itself to the perception that the right to keep arms was the “birthright” of any American who voluntarily professed his allegiance to the new American states.

“Whereas Great Dangers Have Arisen”: Early American Applications of the Police Power to Regulate the Use of Guns

In early America, the legal immunity surrounding the possession of guns by members of the body politic did not extend to their use. Early American militia laws prohibited any use of guns on the day of muster unless expressly ordered by militia officers. They also required militiamen and other householders to bring their guns to the muster field twice a year so that militia officers could record which men in the community owned guns. Some colonies authorized door-to-door surveys of gun ownership.[54] More important, colonial and early state governments routinely exercised their police powers to restrict the time, place, and manner in which Americans used their guns.

Colonial governments expressed particular concern over the firing of guns after dark, in part because the traditional method of raising the alarm of an attack after dark involved the firing of several guns in succession. Thus, an amendment to New Hampshire’s militia law prohibited the firing of guns after sunset during “time of war or watch.” Connecticut and Georgia enacted similar measures. North Carolina was more concerned with the dangers to lives and property stemming from the use of guns in night-time hunting, a practice that it banned. New York and Pennsylvania, noting that “great dangers have arisen and mischief been done,” prohibited the firing of “guns, rockets, squibs, and fireworks” to celebrate the new year. These legislatures probably hoped to avoid fires caused by raucous night-time celebrations in built-up settlements. Rhode Island responded to similar fears of “accidental death” and the “firing of the towns” when prohibiting the firing of guns and lighting of fireworks within any town after dark. For its part, Virginia cracked down on celebratory gunfire while “drinkeing Marriages and funerals only excepted.” The commonwealth also prohibited gunfire on the Sabbath.[55]

American jurisdictions also regulated the places in which guns could and could not be used. By 1770, the shooting of guns was prohibited in the cities of Philadelphia, New York, and Boston. The colonies of Pennsylvania and New York extended this prohibition to all other towns and boroughs. Delaware also prohibited the firing of guns within built-up areas, but made an exception for “days of public rejoicing.” Colonial legislatures also tried to protect the highways from stray gunfire. Massachusetts banned the shooting of guns on Boston Neck. Rhode Island banned the placement of shooting ranges lying across a public highway. Pennsylvania banned gunfire “on or near any of the King’s highways.” The legislature noted, however, that the fine did not extend “to any person carrying a gun on the public highway.” New Jersey also explicitly protected the carrying of guns on the highways.[56]

Though American legislatures did not use game laws to restrict gun ownership, they did regulate hunting. Massachusetts tried to protect the population of waterfowl by cracking down on hunters approaching nesting grounds by boat. New Jersey, Pennsylvania, and Virginia all prohibited hunting on enclosed land without permission of the owner and banned the practice of fowling in the streets of major cities. To enforce the ban, these laws fined anyone carrying a gun on such land. Colonial legislatures also attempted to restrict access to unenclosed and common lands. South Carolina banned hunting more than seven miles from one’s residence. New Jersey and Pennsylvania restricted hunting on unenclosed land to those qualified to vote in the province.[57]

Finally, colonial and state legislatures placed certain uses of guns completely out of bounds. New Jersey forbade the setting of gun traps triggered by a trip wire and prohibited “all shooting matches for lucre of gain except on days of public training.” Maryland fined militiamen who used public arms for “hunting, gunning, or fowling.” Massachusetts regulated the manner of keeping arms as well as the manner of using them. As a precaution against the accidental wounding of firefighters, the state prohibited the storage of loaded guns in any house within the town of Boston.[58]

At least some of these laws, including the prohibition of storing loaded guns in Boston, provided for the confiscation of the gun as penalty. North Carolina and New Jersey both acted to prevent trespasses by hunters and to preserve their game populations by levying steep fines for abusive hunting practices. Each colony also provided that hunters without a “settled habitation” or residence in the colony would forfeit their guns. While these laws might in fact disarm individuals, they did not, strictly speaking, regulate gun ownership. Furthermore, offenders who could prove stable residence in the colony, an essential criterion of membership in the body politic, were exempt from this additional penalty.[59]

Colonial and state governments thus did not hesitate to regulate the use of guns in order to promote public safety and to protect private property. This robust use of the colonial and early national states’ police power to regulate the use of guns both conforms to Novak’s vision of the police power and stands in stark contrast to the refusal over the course of two centuries to use that power to regulate the ownership of guns by members of the body politic. Faced with clear threats to public order and safety, state legislators did not hesitate to curb “dangerous” uses of guns.

How then do we explain their refusal to curb the ownership of guns by “dangerous” citizens? Clearly English law supplied ample precedent. Furthermore, popular unrest such as Bacon’s Rebellion, the Regulator movements, New Jersey’s anti-rent riots, and half a century of tenant unrest in the Hudson Valley must have illustrated the threat to public order posed by widespread gun ownership.[60] Two centuries of consistent legislative restraint lends itself to the suggestion, though it does not conclusively prove, that colonial and early national legislators did not see the regulation of the gun ownership of citizens as a legitimate exercise of the police power.[61] The history of early American gun regulation thus demonstrates a sharp departure from English law and practice and strongly suggests the emergence in America of a legal right to own guns.

Conclusion: Understanding the Second Amendment in Context

Proponents of the “new paradigm” for understanding the Second Amendment have dubbed the right to keep and bear arms a “civic right.” Such a right is, in the words of Saul Cornell, “inextricably linked to the obligation to participate in communal defense as part of a well-regulated militia.” Uviller and Merkel’s formulation similarly describes “a personal liberty that has meaning and substance only in the social context of civic obligation carried out within a public organization.” For his part, David Konig argues that the Second Amendment embodies “an eighteenth-century individual right exercised collectively.”[62] While Cornell describes the right as belonging to citizens, proponents of the civic rights model maintain that the right might be withheld from significant portions of the body politic on the basis of property qualifications, perceived “dangerousness,” or a lack of “virtue.”[63]

The link between the militia and the right to keep and bear arms that civic rights proponents seek to underline is consistent with some eighteenth-century evidence and also with some nineteenth and twentieth-century legal precedents interpreting the Second Amendment. It is reflected in Tench Coxe’s assertion that it is the militia who are “entitled and accustomed to their arms.” It explains the special protections against impressment given to the arms of militiamen by Virginia and Connecticut. Finally, it serves to highlight the ambiguous connection between the right to keep and bear arms and the “preservation and efficiency of a well-regulated militia” articulated in United States v. Miller.[64]

Nevertheless, the civic rights model as articulated by Cornell, Uviller and Merkel, and Konig, requires modification. Where civic rights proponents would assert that service in the militia defines those who enjoy a right to keep and bear arms, early American law recognized a right to keep arms that transcended this “inextricable linkage.” Early American law imposed an obligation to keep arms on every adult male, even those exempt from militia service. From this obligation emerged a right to keep arms that extended to all citizens, defined as free white men willing to swear allegiance as a test of their voluntary membership in the body politic. At no time during the period under examination was the right subject to property qualification or actual membership in the militia.[65] The right belonged to those citizens individually, and, in America, they exercised it individually.

Evidence from the Revolutionary period indicates that Americans had come to view the right to keep arms as one of the rights of citizenship. In the Revolution-era Test Acts one can discern a consistent association between the right to keep arms and other basic civil rights: the right to vote, the right to hold office, the right to sit on a jury, the right of access to the civil courts, the right to practice licensed professions, and the right to buy or sell property. The acts described these rights as the “privileges of a good and free member of this community,” the “privileges of citizenship,” the “immunities and privileges” of a “free subject,” and the “rights and privileges of a free citizen.” At the time of the framing of the Second Amendment, then, Americans understood the right to keep arms not only as a civic right in the sense of its being connected to a civic obligation, but also as a basic right of citizenship.[66]

The right to keep arms commanded legislative respect in early America because it facilitated the public purpose of collective self-defense. Thus, the eighteenth-century understanding of the right was distinct from the fully libertarian right of citizens to “keep and carry arms where ever they went” recognized by the United States Supreme Court in Dred Scott v. Sanford.[67] When Saul Cornell suggests that the right to bear arms, like the right to sit on a jury, “required citizens to act in a collective manner for distinctly public purposes,” he is correct about the connection to a public purpose. But the right to keep arms, as distinct from bearing them, did not require collective action. Nor was the right carried out within a public organization, as suggested in Uviller and Merkel’s formulation.[68] Finally, the guns qualifying for this legal immunity were not limited to those specified under law as required for militia service. Throughout early American history, militiamen routinely came to muster with hunting weapons of all kinds. Muskets, rifles and fowling pieces, and “smooth bored guns or firelocks,” were commonly recorded on official reports of militia armament, and Revolutionary militiamen often went into battle with whatever weapons came to hand. The keeping of all such “firelocks” by individual citizens was a private act rendered immune from state interference because it facilitated the public act of collective self-defense.[69]

The preceding analysis also demonstrates the need for caution when placing the American right to keep and bear arms in a transatlantic context. Leading proponents of the civic rights interpretation have grounded the Second Amendment in the context of transatlantic political philosophy, with a particular emphasis on contributions from England, Scotland, and Italy.[70] Most recently, David Konig examined one such context, James Burgh’s Political Disquisitions. In this 1774 tract, Burgh complained that the people of Scotland had been disarmed and denied the right to organize a militia for their defense.[71] Konig traces particular arguments during the ratification debate in New Hampshire, North Carolina, and Virginia to these earlier Scottish complaints. His analysis demonstrates the manner in which attentiveness to the transatlantic context can add materially to our understanding of particular moments in the ratification of the Constitution.

Regrettably, the conclusion of Konig’s essay serves as a cautionary example of giving the transatlantic “republic of letters” more than its due. Konig takes note of Federalists and Anti-Federalists who argued that the maintenance of the universal militia and a broad conception of the right to keep and bears arms was necessary to the preservation of American liberty. Yet in interpreting the Second Amendment, he subordinates their voices to that of William Blackstone and defines the amendment within the narrow context of the right to bear arms as understood in English common law: the “auxiliary right of the subject … of having arms for their own defence, suitable to their condition and degree, and such as are allowed by law.” Emphasizing the “proper eighteenth-century context of British law and transatlantic politics,” Konig slights the development over almost two centuries of a distinctly American common law governing the right to keep and bear arms.[72]

Though citizens in late eighteenth-century America had become “accustomed” to a right to keep arms, at no point in this period did the various provincial, state, or national governments issue an explicit constitutional guarantee of a “right to keep arms” free of reference to bearing them. Nevertheless, some early Americans believed that the legal immunity enjoyed constitutional protection under the Second Amendment, and, over the course of the republic’s first half century, that reading of the amendment became authoritative.

Concern for a constitutional guarantee of the right to keep arms is reflected in the amendments submitted during the ratification debate of 1787–88. Ratifiers in Pennsylvania, New Hampshire, and Massachusetts proposed amendments to the Constitution that recognized an individual right to keep arms. New Hampshire’s proposed language, “Congress shall never disarm any Citizen unless such are or have been in Actual Rebellion,” provided the broadest protection, suggesting that the right to keep arms expired only when an individual committed an overt act of levying war. The Massachusetts and Pennsylvania proposals were slightly narrower, recognizing the power to disarm criminals and those engaged in riot, affray, and other breaches of the peace. The dissenting minority of the Pennsylvania convention proposed “That the people have a right to bear arms for the defense 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.” In Massachusetts, Samuel Adams proposed to that state’s ratifying convention that “the said Constitution be never construed to authorize Congress … to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.”[73]

Though these provisions were clearly concerned with the right of citizens to keep arms, they probably had less influence over American constitutional thought than a second set of texts that recognized a right to “keep and bear arms.” These include, in chronological order, the Massachusetts Constitution of 1780, proposed amendments to the Constitution of the United States issued by the ratifying conventions of New York, Virginia, and North Carolina, and early drafts of the Second Amendment itself.[74] From contemporary interpretations of this language emerged an authoritative interpretation of the Second Amendment as protecting an individual right to keep arms.

The first interpretation of the meaning of the “right to keep and bear arms” came in a discussion of the rights recognized by the Massachusetts Constitution of 1780. The seventeenth article of that constitution’s declaration of rights declared in part that “the people have a right to keep and bear arms for the common defense.” When the constitution was sent to the towns for ratification, the inhabitants of Northampton and Williamsburg raised objections to this formulation. The inhabitants of Northampton complained that the article “is not expressed with that ample and manly openness and latitude which the importance of the right merits.” They suggested that the article be altered to read “The people have a right to keep and bear arms as well for their own as the common defense.” The inhabitants of Williamsburg offered almost identical language, but explained their objections at greater length: “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 to government we ought never to be deprived of them.” They warned that without more explicit protection of their right to keep arms, the legislature might mandate the public storage of guns.[75] Of 225 towns ratifying the Constitution of 1780, only these two expressed reservations over article seventeen. The constitution was declared ratified without further amendment.

Uviller and Merkel have interpreted this episode as evidence of the isolation of those early Americans who were concerned with a “private right to arms.”[76] But these initial petitions were not the only public comments on the meaning of the Massachusetts declaration of rights provision. In the winter of 1786–1787, prompted by a dispute over the propriety of Maine’s Portland Convention, “Scribble Scrabble” and “Senex” debated the meaning of the right to arms recognized in the Massachusetts declaration of rights. Scribble Scrabble asserted that the security provided by the declaration for “the right to keep and bear arms for the common defense” did not imply a degradation of the natural right of individuals to use those arms for other purposes such as hunting. Senex responded that the article in question did indeed imply limitations upon the natural rights of the people, asking, “have they a right to bear arms against the common defense?” He urged his opponent to consider the purpose behind the article: “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.” Scribble Scrabble reiterated that “in the state of nature individuals have a right to keep arms—say muskets: these they may use to kill game, fowl, or in self defence, or in defence of their fellow creatures. Now, the 17th article says, the people have a right to keep and bear arms in the common defence. Does this security of arms, in this instance, in the people, take away the right they originally had to kill game or fowl with their muskets?” Scribble Scrabble conceded that such subsidiary uses of arms might fall within the legislature’s police power. Nevertheless, he and Senex both read the declaration of rights as affording individuals a constitutional “security” against having their arms “taken away.”[77]

In his defense of the Portland Convention, Scribble Scrabble subscribed to a strain of plebeian constitutionalism analyzed at length by Saul Cornell. Cornell and David Konig have both acknowledged that a broad individual rights understanding of the right to keep and bear arms existed within an extra-legal culture of insurgents and vigilantes cut off from “the mainstream of the Anglo-American constitutional tradition.”[78] Though that description may well apply to Scribble Scrabble, Senex cannot be so easily dismissed. Nor is he the only early American who understood the “right to keep and bear arms” to incorporate an individual citizen’s right to keep arms. In 1793, Jedidiah Morse, an ardent Massachusetts Federalist, interpreted the Massachusetts declaration of rights provision as declaring that “every subject … may keep arms.”[79]

Taken together, these commentaries on the Massachusetts declaration of rights offer an alternative explanation for the lack of response to the petitions of Williamsburg and Northampton. Senex, Scribble Scrabble, and Morse demonstrate that concern over the right to keep arms was expressed by Federalists, Anti-Federalists, and plebeians alike. If most citizens of Massachusetts similarly understood article seventeen to afford constitutional protection to their individual right to keep arms, then their silence in 1780 is easily explained. The residents of Northampton and Williamsburg were isolated not by their concern for individual liberties but by their exaggerated suspicions of distant authority.

In June 1789, Tench Coxe published an analysis of a text even more closely related to the Second Amendment. Writing in support of the passage of the Bill of Rights, Coxe attempted to explain Madison’s original draft of what would become the Second Amendment: “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country.” Coxe interpreted that passage as follows: “As civil rulers, not having their duty to the people, duly before them, may attempt to tyrannize, and as the military forces which shall be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed in the next article in their right to keep and bear their private arms.”[80]

Collective rights interpreters have rightly noted that Coxe’s interpretation may not have reflected the intent of the framers and that he was not commenting on the final draft of the amendment.[81] Still, confronted with a text describing the right of the people to keep and bear arms, Coxe, like his counterparts in Massachusetts, interpreted it as affording constitutional recognition to the legal immunity surrounding the keeping of arms.

Later that summer the House of Representatives produced its own draft of the Second Amendment: “A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms.”[82] In response, a supporter of Samuel Adams interpreted the House draft as a vindication of Adams’s proposal that the Constitution be amended to prevent Congress from disarming the “people of the United States who are peaceable citizens.”[83] Here again, the inclusion of the phrase “the right of the people to keep and bear arms” seems to have suggested to contemporaries that the amendment functioned, at least in part, to protect an individual right to keep arms.

We have very few eighteenth-century commentaries on the meaning of the final draft of the Second Amendment. In 1796 a letter to two commissioners appointed to negotiate a treaty with the Creek Indians complained of regulations they had issued declaring that “no citizen is to be in arms” in the neighborhood of Coleraine, Georgia, where the negotiations were conducted. The author of the letter denounced this regulation as rendering the Second Amendment and the militia laws “mere nullities.” He insisted that “No captain of militia, could have mustered his men, and must have disarmed his company, and thereby violated the constitution and laws of his country.” The author clearly framed his discussion of the Second Amendment within the context of the militia, but he also expressed concern that the people of the neighborhood would be disarmed.[84]

In 1798, a Democratic-Republican styling himself “A Citizen” published a letter “To the Freemen of Kentucky” in the Kentucky Gazette. He wrote in defense of a set of resolutions passed at a large public meeting of the citizens of Fayette and the adjacent counties. That meeting had resolved that “A well organized militia are the proper, and the only safe defenders of our country; that for that purpose the general and state governments ought to provide them with arms and ammunition; that as they have neglected to do this, every freeman ought to consider it his duty to provide both for himself.”[85] In response to Federalist criticism that the resolution was seditious, “A Citizen” explained that “being armed for their defense, is the greatest privilege a free people can enjoy, because it is the only real security of any privilege.” He argued that the right to be armed was unequivocally declared in the Second Amendment and the Constitution of Kentucky: “It is therefore not only your right but your indispensable duty also to be armed.”[86]

Neither of these early commentaries was authoritative and neither discusses a right to keep arms wholly unconnected from service in the militia. But each suggests that the authors saw in the Second Amendment a protection for the possession of arms as a distinct and urgent concern. In Georgia, the author noted that the commissioners’ regulations would render the militia inoperative, but it was the disarming of the militia, which the author considered as equivalent to disarming the citizens of the district, that nullified the Second Amendment. In Kentucky, the only operation of the Second Amendment described by the author was its guarantee of the right “to be armed.”

That understanding of the Second Amendment as acting in part to secure an individual right to keep arms is also reflected in St. George Tucker’s discussion of the Constitution of the United States and its relationship to English common law. In 1803, Tucker, a Virginia Anti-Federalist, discussed several strains of meaning attached to the Second Amendment. In his discussion of the militia clauses of the Constitution, he noted that the Second Amendment protected the right of the states to arm and organize their militias. But in his discussion of the text of the amendment itself, and in his commentary on Blackstone’s discussion of the right to bear arms in England and the operation of the English game laws, Tucker interpreted the amendment as protecting a right to keep arms. In these passages, Tucker noted with clear disapproval that the English Bill of Rights had failed to protect the people of England from the game laws “whereby the right of keeping arms is effectually taken away.” In contrast, he expressed his hope that in America, “the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty.”[87] Tucker’s attention to the right to keep arms as a distinct concern is clear.

Tucker’s interpretation was authoritative. It served to inform constitutional commentary on the Second Amendment throughout the nineteenth century. Writing in 1829, William Rawle followed Tucker’s lead in contrasting the security of the right to keep arms in America with its “disgraceful” infringement by the English game laws. Rawle described the amendment’s protection of the right to keep and bear arms as a “corollary” of the desirability of a well-regulated militia. He declared that the amendment acted as a “prohibition” on any attempt by the Congress or a state legislature to “disarm the people.”[88]

The Tennessee Supreme Court offered the fullest discussion of the contours of the “right to keep and bear arms” in the 1840 case Aymette v. State.[89] The case concerned the constitutionality of a Tennessee statute prohibiting the carrying of concealed knives. The court began by discussing the disarming of the English population under the game laws and the quartering acts imposed by James II. The Second Amendment and the corresponding provision of the Tennessee Bill of Rights were framed, the court declared, to redress these deficiencies in English law. Having followed Tucker and Rawle’s analysis of the purposes for which the right to keep and bear arms was protected in the state and federal constitutions, the court engaged in lengthy analysis of the meaning of the phrase:
As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment…. The citizens have the unqualified right to keep the weapon, it being of the character before described, as being intended by this provision. But the right to bear arms is not of that unqualified character. The citizens may bear them for the common defence; but it does not follow, that they may be borne by an individual, merely to terrify the people, or for purposes of private assassination.[90]

On this basis, the court upheld the statute prohibiting the carrying of concealed weapons, and the case has thus been cited as a precedent favorable to gun control.[91] But the court also identified within the state and federal constitutions two distinct rights: to keep arms and to bear them collectively for the common defense. The court thus provided the fullest articulation for an interpretation first offered by Scribble Scrabble and Senex half a century before. The court 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.

There is little evidence that the framers of the Second Amendment were concerned with recognizing an individual right to keep arms. On the whole I concur with David C. Williams in his assertion that the framers of the amendment were concerned primarily with the constitutional organization of political violence rather than individual rights.[92] Nonetheless, an informed American citizenry accustomed to a legal right to keep arms appears over time to have fashioned its own interpretation of the amendment’s text. Given the evidence presently available, it is not possible to determine how widely such an interpretation was held. Nevertheless, the evidence presented here is sufficient to support three historical conclusions: An interpretation of the Second Amendment as securing in part an individual right to keep arms was contemporaneous with the amendment’s framing. That interpretation was recognized as authoritative early in the nineteenth century. Finally, the early American proponents of that interpretation transcended region, partisan affiliation, and any reasonable measure of plebeian consciousness. Lawyers, backwoodsmen, Federalists, and Democrats, they believed, like Mrs. Barrett’s militiaman, that they had a right to keep arms.

Robert H. Churchill is an assistant professor of history in the department of humanities at the University of Hartford. He would like to acknowledge the assistance of David Thomas Konig, Saul Cornell, Robert J. Cottrol, Clayton Cramer, the past and present editors of Law and History Review, and the journal’s anonymous referees.

Notes

1. On the confrontation between Mrs. Barrett and the militiaman, see Robert A. Gross, The Minutemen and Their World (New York: Hill and Wang, 1976), 126.

2. Sanford Levinson, “The Embarrassing Second Amendment,” Yale Law Journal 99 (1989): 637–59.

3. See the discussions of recent scholarship in United States v. Emerson, 270 F.3d 203 (2001), and Sylveira v. Lockyer, 312 F.3d 1052 (2002).

4. For individual rights interpretations, see Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (Cambridge: Harvard University Press, 1994); Robert J. Cottrol, Gun Control and the Constitution: Sources and Explorations on the Second Amendment (New York: Garland Publishing, 1994); Stephen Halbrook, That Every Man Be Armed (Albuquerque: University of New Mexico Press, 1984); Don B. Kates, “Handgun Prohibition and the Original Meaning of the Second Amendment,” Michigan Law Review 82 (1983): 204–73; and the contributions to the special Second Amendment issue of the Tennessee Law Review 62 (Spring 1995). For collective rights and statist interpretations, see Garry Wills, “To Keep and Bear Arms,” New York Review of Books 42 (1995): 62–73; Saul Cornell, “Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory,” Constitutional Commentary 16 (1999): 221–45; Carl T. Bogus, “The Hidden History of the Second Amendment,” University of California at Davis Law Review 31 (1997): 309–408; and the contributions of Michael Bellesiles, Jack Rakove, and Paul Finkelman to the “Symposium on the Second Amendment,” Chicago-Kent Law Review 76 (2000).

5. For recent attempts to create a new paradigm for the interpretation of the Second Amendment, see Saul Cornell, “Don’t Know Much About History: The Current Crisis in Second Amendment Scholarship,” Northern Kentucky University Law Review 29 (2002): 657–81; H. Richard Uviller and William G. Merkel, The Militia and the Right to Arms, or, How the Second Amendment Fell Silent (Durham: Duke University Press, 2002); and David Thomas 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.

6. Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788–1828 (Chapel Hill: University of North Carolina Press, 1999), 207–10; and David Thomas Konig, “The Persistence of Resistance: Civic Rights, Natural Rights, and Property Rights in the Historical Debate over the ‘Right of the People to Keep and Bear Arms,'” Symposium: The Second Amendment and the Future of Gun Control, Fordham Law Review 73 (2004): 539–47.

7. Malcolm, To Keep and Bear Arms; Bellesiles, “Gun Laws in Early America: The Regulation of Firearms Ownership, 1607–1794,” Law and History Review 16 (1998): 567–89; and Cornell, “Commonplace or Anachronism.” For a recent contribution, see Saul Cornell and Nathan DeDino, “A Well Regulated Right: The Early American Origins of Gun Control,” Symposium: The Second Amendment and the Future of Gun Control, Fordham Law Review 73 (2004): 487–528.

8. Malcolm, To Keep and Bear Arms, chaps. 6–8; Bellesiles, “Gun Laws,” 585–86; Cornell and DeDino, “Well Regulated Right,” 500–502. Malcolm asserts that the right to keep and bear arms was recognized in England and America as an individual right, but also discusses a variety of regulatory legislation on both sides of the Atlantic.

9. Though they take markedly different stances on the meaning of the Second Amendment and the content of English legal precedent, Malcolm, Bellesiles, and Konig all conclude that American law conformed to English precedent. See Malcolm, To Keep and Bear Arms, chap. 8; Bellesiles, Arming America: The Origins of a National Gun Culture (New York: Knopf, 2000), chap. 1; Bellesiles, “Gun Laws,” 567–77; and Konig, “Missing Transatlantic Context,” 153–59. For the impact of this conclusion on Second Amendment scholarship, see the contributions of Robert J. Cottrol, Gregg Carter, and Robert Spitzer to “Gun Laws and Policies,” Focus on Law Studies 18 (Spring 2003):1–20.

10. Bellesiles, “Gun Laws,” 576 and 586; Saul Cornell, “Commonplace or Anachronism,” 228–31; Saul Cornell, “To Keep and Bear Arms,” in Whose Right to Arms Did the Second Amendment Protect? ed. Saul Cornell (New York: Bedford/St. Martin’s, 2000), 13; Cornell, “Don’t Know Much About History,” 671; and Cornell, “Beyond the Myth of Consensus: The Struggle to Define the Right to Bear Arms in the Early Republic,” in Beyond the Founders: New Approaches to the Political History of the Early American Republic, ed. Jeffrey L. Pasley et al. (Chapel Hill: University of North Carolina Press, 2004), 251–73, at 256 and 259–60.

11. As noted below, I have included in this survey comprehensive published collections of individual state laws, such as Hening’s Statutes at Large, where they are available. For states without such collections, I consulted two microform collections. For the years 1775–1815, I surveyed the series of state session laws published on microfilm as part of the Records of the States of the United States of America (Washington, D.C., 1949). For the colonial period through 1775, I consulted the microfiche edition of Colonial Session Laws (Buffalo: William S. Hein & Co., 1987). In the notes below, laws drawn from these two collections are identified by title, year, and state. Finally, I also surveyed John D. Cushing’s volumes of the earliest printed laws of the thirteen colonies.

12. Tench Coxe, “A Pennsylvanian, No. 3,” Pennsylvania Gazette, February 20, 1788.

13. On the English Militia, see Lois Schwoerer, No Standing Armies: The Antiarmy Ideology in Seventeenth-Century England (Baltimore: Johns Hopkins University Press, 1974), 14–15; A. Hassell Smith, “Militia Rates and Militia Statutes, 1558–1663,” in The English Commonwealth, 1547–1640, ed. Peter Clark et al. (Leicester, U.K.: Leicester University Press: 1979): 93–110; and Ann J. King, ed., Muster Books for North and East Hertfordshire, 1580–1605 (Hertfordshire Record Society, 1906), 50–82 and 88–96.

14. Ibid.; 4 & 5 Philip and Mary, c. 2 (1557); “An Act for Ordering the Forces in the Several Counties of this Kingdom,” 13 & 14 Charles I, c. 3 (1662); and “An Act for making the Militia in that part of Great Britain called England more useful,” 1 George I, Stat. 2, c.14 (1714).

15. “An act for the better ordering of the militia forces in the several counties of that part of Great Britain called England,” 30 George II, c. 25 (1757).

16. For colonial militia statutes mandating universal militia training, see The General Laws and Liberties of Connecticut Colonie (1672), 49–51; “An Act for Regulating the Militia,” 1693, Massachusetts Session Laws; “An Act for Regulating the Militia,” 1717, New Hampshire Session Laws; “An Act, Regulating the Militia in this Colony,” 1718, Rhode Island Session Laws; “The Duke of York’s Laws, 1665–75,” John D. Cushing, ed., The Earliest Printed Laws of New York, 1665–1693 (Wilmington: Glazier, 1978), 153; “An Act for Regulating the Militia of the Colony of New York,” 1755, Charles Z. Lincoln et al., eds., Colonial Laws of New York (Albany: James B. Lyon, 1894), 3:1051; “An Act for the Settling the Militia in this Province,” 1704, Bernard Bush, ed., Laws of the Royal Colony of New Jersey, 1703–1745 (Trenton: New Jersey State Library, 1977), 2:15; “An Act for Establishing a Militia within this Government,” 1742, Delaware Session Laws; “An Act for the Better Regulating the Militia of this Government,” 1746, North Carolina Session Laws; “An Act for the Better Settling and Regulating the Militia, and Appointing Look Outs,” 1703, David J. McCord, ed., The Statutes at Large of South Carolina (Columbia: A. S. Johnston, 1841), 9:617; and “An Act for the Better Ordering the Militia of this Province,” 1765, Georgia Session Laws.

17. As the eighteenth century progressed, different colonies began to exempt their oldest and youngest men from the obligation to train. Still, the vast majority of men in colonial society participated in training for the bulk of their adult lives. For Rhode Island, see “An Act, Regulating the Militia in this Colony,” 1718, Rhode Island Session Laws.

18. Pennsylvania passed a voluntary militia law during the French and Indian War. See “An Act for the Better Ordering and Regulating such as are willing and desirous to be united for Military Purposes within this province,” 1755, James T. Mitchell et al., eds., The Statutes at Large of Pennsylvania from 1682 to 1801 (Harrisburg: William Stanley Ray, 1896), 5:197. Pennsylvania’s first universal militia statute came in 1777. See “An Act to Regulate the Militia of the Commonwealth of Pennsylvania,” 1777, ibid., 9:75.

19. “An Act for the ordering and regulating the Militia of this Province for the better defense and security thereof,” 1704, Maryland Session Laws. Maryland repealed this exclusion in 1777. See “An Act to regulate the militia,” 1777, Maryland Session Laws.

20. See the Middlesex County, Virginia militia list, William Armstrong Crozier, ed., Virginia Colonial Militia, 1651–1776 (New York: Genealogical Association, 1905), 98. For Virginia’s first universal militia statute, see “An Act for settling the Militia,” 1705, William W. Hening, ed., The Statutes at Large, Being a Collection of all the Laws of Virginia (Richmond: Franklin Press, 1809–1823), 3:335.

21. For comparison, see, in addition to the above cited English statutes, “An Act to make the Militia of this Kingdom more useful,” 2 George I, c. 9 (Ireland, 1715), The Statutes at Large passed in the Parliaments of Ireland (Dublin: George Grierson, 1786), 4:333; and “An Act for the Settlement of the Militia of this Island,” 1702, Acts of Assembly Passed in the Island of Barbadoes, from 1648 to 1718 (London: John Baskett, 1721), 175. For a Caribbean statute that does appear to mandate universal militia service, see “An Act for settling the Militia,” 1681, Acts of Assembly Passed in the Island of Jamaica, from 1681 to 1737 (London: John Baskett, 1738), 29.

22. In the census of 1755, the colony reported 5265 “soldiers” and 2997 additional ablebodied men on the alarm list out of 9177 white men. The trained band thus incorporated 64 percent of able-bodied men from sixteen to sixty, even though in Rhode Island men were exempt from training after the age of fifty. Colonial officials estimated that one-eighth of the white male population of the colony was Quaker. See “Account of the People in the Colony of Rhode Island, Whites and Blacks, with the quantity of Arms and Ammunition in the hands of Private Persons,” December 24, 1755, Board of Trade Journals, 1675–1782, Volume 64, Historical Society of Pennsylvania.

23. Ibid. The census reported 5023 privately owned “small arms,” 2418 swords and 614 pistols in the colony. In 1996, Michael Bellesiles asserted that gun ownership was exceptional in early America. After Bellesiles reiterated this assertion in Arming America, published in 2000, his scholarship came under intense criticism. For Bellesiles’ original analysis and more recent work on gun ownership and rates of militia armament that refute his claim that gun ownership was rare in early America, see Bellesiles, “The Origin of Gun Culture in the United States, 1760–1865,” Journal of American History 83 (1996): 424–53; James Lindgren and Justin Heather, “Counting Guns in Early America,” William and Mary Law Review 43 (2002): 1777–1842; and Robert H. Churchill, “Gun Ownership in Early America: A Survey of Manuscript Militia Returns,” William and Mary Quarterly, 3d ser., 60 (2003): 615–42. For additional findings on the presence of guns in colonial probate inventories, see Kevin Sweeny, “Guns along the River: The Possession and Use of Firearms in Western Massachusetts, 1660–1800,” paper presented at the 2004 annual meeting of the Organization of American Historians (cited with permission of the author); Amy Cox, “Evaluating the Place of Guns in Early America,” paper presented at the 2004 annual meeting of the Organization of American Historians (cited with permission of the author); Gloria Main, “Many Things Forgotten: The Use of Probate Records in Arming America,” William and Mary Quarterly, 3d ser., 59 (2002): 211–16; and Judith A. McGaw, “‘So Much Depends upon a Red Wheel Barrow’: Agricultural Tool Ownership in the Eighteenth-Century Mid-Atlantic,” in Early American Technology: Making and Doing Things from the Colonial Era to 1850, ed. Judith A. McGaw (Chapel Hill: University of North Carolina Press, 1994), 332. Kevin Sweeny finds a sharp decrease in gun ownership in Hampshire County, Massachusetts during and after the American Revolution. That decline does not appear in contemporary militia returns. There is an abundance of anecdotal evidence of local shortages of arms throughout the period under consideration. Nevertheless, the available statistical evidence strongly points to widespread gun ownership among free adult white men.

24. “A Supplementary Act to the Act entituled, an Act for better settling and regulating the Militia of this Colony of New Jersey,” 1757, Bush, Laws of the Royal Colony, 3:503; “An Act for the better regulating the Militia of this Province,” 1747, McCord, Statutes at Large, 9:645; “An Act for the Better Ordering the Militia of this Province,” 1765, Georgia Session Laws.

25. New Haven’s Settling in New England and some Laws for Government (London, 1656), 64; “Bill for the Settlement of the Militia,” 1684, Lincoln, Laws of Colonial New York, 1:161; “An Act for Establishing a Militia within this Government,” 1742, Delaware Session Laws; and “An Act for Amending and further continuing the act for the better regulating and disciplining the Militia,” 1762, Hening, Statutes at Large, 7:534.

26. “An Act concerning Servants and Slaves,” 1741, North Carolina Session Laws; “An Act for Disarming Papists and Reputed Papists, refusing to take the oaths to the Government,” (1756), Hening, Statutes at Large, 7:35; and “Form of an Association into which Numbers are daily entering, for the Defence of this City and Province—With Remarks on each Paragraph,” Pennsylvania Gazette, December 13, 1747.

27. For post-colonial examples of this usage, see “An Act for the regulating, training, and arraying of the Militia,” 1781, New Jersey Session Laws; “An Act for forming, regulating, and conducting the Military Force of this State,” 1782, Connecticut Session Laws; “An act for amending the several laws for regulating and disciplining the militia and guarding against invasions and insurrections,” 1784, Hening, Statutes at Large, 11:476; “An Act for regulating and governing the Militia of the Commonwealth of Massachusetts,” 1793, Massachusetts Session Laws; “An act for regulating and governing the Militia of this state,” 1797, Vermont Session Laws; and the Speeches of John Rhea and Ezekiel Bacon on the bill for arming the militia, December 1807, Annals of Congress: The Debates and Proceedings in the Congress of the United States, 42 vols. (Washington, D.C.: Gales and Seaton, 1834–1856), 17:1036 and 1042.

28. “Declaration of the Inhabitants of Queen’s County, New York,” December 6, 1775, Calendar of Historical Manuscripts Relating to the War of the Revolution in the Office of the Secretary of State (Albany: Weed, Parsons, and Company, 1868), 1:200–201.

29. Bellesiles, “Gun Laws,” 567–73; and Lois Schwoerer, “To Hold and Bear Arms: The English Perspective,” Chicago-Kent Law Review 76 (2000): 27–60.

30. Bellesiles, “Gun Laws,” 586.

31. For examples of the close linkage between impressments, martial law, and the suspension of habeas corpus, see “An Act for giving certain powers to the governor and council, and for the punishing of those who shall oppose the execution of the laws,” 1781, Hening, Statutes at Large, 10:413; “An Act to indemnify such Persons as have acted in Defense of the State, and for the Preservation of Peace during the late War, from vexatious Suits and Prosecution,” 1783, North Carolina Session Laws; and “An Act for settling the Militia,” 1681, Acts of Assembly in Jamaica, 31.

32. A Declaration and Ordinance of the Lords and Commons Assembled in Parliament, for the Associating of the Several Counties of Norfolk, Suffolk, Essex, Cambridge, Isle of Ely, Hertford, and County of the City of Norwich (1642); A Declaration and Ordinance of the Lords and Commons assembled in Parliament for the Better Securing and Settling of the Peace of the County of Kent (1643); “An Act for Ordering the Forces in the Several Counties of this Kingdom,” 13 & 14 Charles I, c. 3 (1662); and “An Act for the Better Ordering of the Militia Forces in the Several Counties of that part of Great Britain called England,” 30 George II, c. 25 (1757).

33. “Several Laws and Orders made at the General Court,” 1675, The Colonial Laws of Massachusetts (Littleton, Colo.: Fred B. Rothman and Co., 1995), 288; and “An Act Restrayning the Impresse of Tymber, etc.,” 1677, Hening, Statutes at Large, 2:415.

34. “An Act for the Better Supply of the Country with arms and ammunition,” 1684, Hening, Statutes at Large, 3:13. For the reaction to impressments in Massachusetts, see Nathanael Greene to Samuel Ward, Sr., December 31, 1775, Richard K. Showman, ed., Papers of General Nathanael Greene, 10 vols. (Chapel Hill: University of North Carolina Press [for the Rhode Island Historical Society], 1976–1996), 1:173; and George Washington to the Massachusetts General Court, January 13, 1776, Philander D. Chase et al., eds., Papers of George Washington, Revolutionary War Series, 9 vols. to date (Charlottesville: University of Virginia Press, 1985–1998), 2:77. For later resistance in Virginia, see Colonel Richard Elliot to Governor Jefferson, November 7, 1780, Calendar of Virginia State Papers (Richmond: James E. Goode, 1881), 1:385.

35. “An Act for Settling the Militia,” 1705, Hening, Statutes at Large, 3:335; and “An Act for the Ordering and Regulating the Militia of this Province for the Better Defense and Security Thereof,” 1704, Maryland Session Laws. For the Virginia law governing the impressments of other types of property and the persons of artisans, see “An Act for reducing the several acts and for making provision against invasions and insurrections into one act,” 1757, Hening, Statutes at Large, 7:106.

36. On the decision against impressments in Massachusetts, compare the resolutions of the Massachusetts Provincial Congress on June 15 and 17, 1775, in William Lincoln, ed., The Journals of Each Provincial Congress of Massachusetts (1838), 336 and 350. For Connecticut and New York, see “An Act for Assembling, Equipping, etc., a Number of the Inhabitants of this Colony for the Special Defense and Safety thereof,” April, 1775, J. H. Turnbull et al., eds., The Public Records of the Colony of Connecticut (Hartford: Brown and Parsons, 1850–90), 14:417; and the order of the New York Provincial Council, May 21, 1776, Berthold Fernow, ed., New York in the Revolution (Albany: Weed, Parsons and Co., 1887), 1:103.

37. Order of the New York Provincial Council, August 10, 1776, Fernow, New York in the Revolution, 1:122; “An Act for Raising and Equipping a Body of Minutemen,” May, 1776, Turnbull, The Public Records of the Colony of Connecticut, 15:290; and Order of the Pennsylvania Council of Safety, Pennsylvania Gazette, November 27, 1776. Pennsylvania authorized the practice again during a 1781 invasion scare that prompted the legislature to prepare to evacuate the entire city of Philadelphia. See “An Act to Make Effectual Provision for the Defense of this State,” 1781, Mitchell, Statutes at Large, 10:361. For the tight limits on impressment in Virginia, see “An Act for Providing Against Invasions and Insurrections,” 1777, Hening, Statutes at Large, 9:291.

38. Rhode Island authorized the impressment of arms for the fitting out of privateers in its colonial militia laws. There is no mention of the practice in the state’s post-1793 militia laws. Because the state’s revolutionary laws are not published, I cannot pinpoint the end of the practice precisely. See “An Act, Regulating the Militia in this Colony,” 1718, Rhode Island Session Laws; and “An Act to Organize the Militia of this State,” 1794, ibid. For the legislation that first dropped the authority to impress arms in New Jersey, Virginia, and North Carolina, see “An Act for the Regulating, Training, and Arraying of the Militia, and for Providing more effectually for the Defense and Security of the State,” 1781, New Jersey Session Laws; “An Act for Amending the Several Laws for Regulating and Disciplining the Militia, and Guarding against Invasions and Insurrections,” 1784, Hening, Statutes at Large, 11:476; and “An Act for Establishing a Militia in this State,” 1786, North Carolina Session Laws.

39. This conclusion is based on my review of the Massachusetts session laws and legislative resolutions, 1775–1815, New York Session Laws, 1775–1815, Pennsylvania Session Laws, 1775–1815, and Connecticut Session Laws, 1780–1815 contained in the Records of the States of the United States; Hugh Hastings, ed., The Public Papers of Daniel D. Tompkins, Governor of New York, 1807–1817 (Albany: J. B. Lyon, 1902); and The Public Records of the State of Connecticut, 17 vols. (Hartford: Case, Lockwood, and Brainard, 1896–), vols. 1–17 (1776–1815).

40. Georgia was unusual in that it did not make a full revision of its militia laws after the passage of the federal militia act of 1792. Instead, the Georgia Militia Act of 1793 is a partial amendment of existing law and does not mention impressment. Only when making a full revision in 1803 did Georgia drop arms from the list of items liable to impressment. See “An Act to Revise, Amend, and Consolidate the Several Militia Laws of this State, and to adapt the Same to the Acts of Congress of the United States,” 1803, Georgia Session Laws. South Carolina inserted the impressment of arms into its militia law for the first time in 1794 and did not make another full revision of its militia laws until the 1830s. See “An Act to Organize the Militia throughout the State of South Carolina in Conformity with the Act of Congress,” 1794, South Carolina Session Laws.

41. Smith v. Ishenhour, 43 Tenn. 214 (1866), at 217.

42. Wiliam J. Novak, “Salus Populi: The Roots of Regulation in America, 1787–1873” (Ph.D. dissertation, Brandeis University, 1992). See also Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996).

43. Tench Coxe, A Freeman No. 2, Documentary History of the Ratification of the Constitution, 18 vols. to date (Madison: Wisconsin State Historical Society, 1976–2000), 15:508–11.

44. “An Act for Ordering the Forces in the Several Counties of this Kingdom,” 13 & 14 Charles I, c. 3 (1662); and “An Act for the Better Securing the Government by Disarming Papists and reputed Papists,” 1 William and Mary, c. 15 (1688). The latter act ordered justices of the peace to disarm all those who refused the oath prescribed in “An Act for the more effectual Preserving the Kings Person and Government,” 30 Charles II, stat. 2, c. 1 (1677). That Act required members of Parliament to repudiate the doctrine of transubstantiation, the mass, and the cult of Mary.

45. See generally Bellesiles, “Gun Laws,” 574–84; and Edmund S. Morgan, American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York: W. W. Norton, 1975), 316–37 and 363–87.

46. Bellesiles, “Gun Laws,” 574–76; Cornell, “Commonplace or Anachronism,” 228–31; Cornell, “To Keep and Bear Arms,” 13; Cornell, “Don’t Know Much About History,” 671; and Cornell, “Myth of Consensus,” 256–60. Jack Rakove, citing Cornell, has asserted that the power to restrict gun ownership lay within the states’ “conventional police powers.” Uviller and Merkel, in turn, cited Rakove in support of the same proposition. Paul Finkleman cited Bellesiles to the effect that “every state had gun control legislation on its books.” Finally, most recently, David Konig has concluded that “gun ownership would not be considered any less a matter of law left to the states to regulate as they saw fit” than the regulation of any other property. See Rakove, “The Second Amendment: The Highest Stage of Originalism,” Chicago-Kent Law Review 76 (2000): 103–66, at 127 and 135; Uviller and Merkel, The Militia and the Right to Arms, 80; Finkelman, “The Second Amendment in Historical Perspective,” Chicago-Kent Law Review 76 (2000): 211; and Konig, “Missing Transatlantic Context,” 143.

47. See 1 George I, stat. 2, c. 13 (1714); and “An Act for Disarming Papists and Reputed Papists, refusing to take the oaths to the Government,” (1756), Hening, Statutes at Large, 7:35.
In 1998, Michael Bellesiles claimed that in 1756 the “Maryland Assembly” passed a “law expropriating all the arms and ammunition of Catholics.” The assembly did pass a bill to that effect, one that would have disarmed Catholics on purely religious grounds. The bill died at the end of the session, however, and was never enacted into law. The bill, clearly identified as such, was entered into the Assembly Journal as “An Act to Prevent the Growth of Popery within this Province.” See Bellesiles, “Gun Laws,” 574; and William H. Browne et al., eds., Archives of Maryland (Baltimore: Maryland Historical Society, 1883–1972), 52:441. The editor’s introduction to that volume describes the bill’s passage in the assembly and eventual demise.
There is nothing in the text of 1 William and Mary, c. 15, the 1688 parliamentary act disarming Catholics on the basis of faith, to indicate that it was in force in colonies. When North and South Carolina passed legislation listing the acts of Parliament in force within those colonies, 1 William and Mary, c. 15 was not among the listed acts. One of the first Justice of the Peace manuals published in the colonies, George Webb’s The Office and Authority of a Justice of the Peace (1739), cited an English statute, 1 William and Mary, c. 26, as providing for the disarming of “Papists,” but the cited statute has no such provision. Webb went on to note that Virginia law prohibited the presence of Catholics in the colony and thus suggested that this parliamentary legislation had no application in the colony. In 1722, New Jersey passed “An Act for the Security of his Majesty’s Government of New Jersey,” which established an oath of allegiance that included a declaration against transubstantiation. The act further provided that those refusing the oath would “forfeit and be proceeded against, as a popish recusant by all or any the laws of England should forfeit and be proceeded against.” But the act did not explain what those penalties were, and the only parliamentary statute cited was 12 William III, c. 2, which does not touch the issue of disarmament. Given the tangle of English law imposing disabilities on Catholics, it is not clear that colonial legislatures were fully informed of English law in the matter, a confusion illustrated by Webb’s incorrect citation. See “An Act to put in Force in this Province, the Several Statutes of the Kingdom of England, or South Britain, therein particularly mentioned,” 1746, John D. Cushing, ed., The Earliest Printed Laws of North Carolina, 1669–1751 (Wilmington: Michael Glazier, 1977), 1:293; “An act to put in Force in this Province the several Statutes of the Kingdom of England or South Britain, therein particularly mentioned,” 1712, John D. Cushing, ed., The Earliest Printed Laws of South Carolina, 1692–1734 (Wilmington: Michael Glazier, 1978), 1:236; Webb, Office and Authority, 133; and “An Act for the Security of His Majesty’s Government in New Jersey,” 1722, Bush, Laws of the Royal Colony, 2:284.
In sum, there is no clear evidence that 1 William and Mary, c.15 was in force in the colonies.

48. Cornell, “Commonplace or Anachronism,” 228; “Don’t Know Much About History,” 672; and “Myth of Consensus,” 259.

49. On March 14, 1776 the Continental Congress recommended that provincial legislatures disarm all persons “who are notoriously disaffected to the cause of America, or who have not associated, and shall refuse to associate, to defend, by arms, these United Colonies.” Journals of the Continental Congress, 1774–1789 (Washington, D.C.: Government Printing Office, 1906), 4:201–5. It is pertinent to note that Congress acted in response to a report by General Arthur Lee urging Congress to vigorously exercise its emergency military powers to provide for the defense of the city of New York. For examples of states that acted on this recommendation, see “Resolves of Assembly, Agreed to April 6, 1776,” Mitchell, Statutes at Large, 8:559; and “An Act for Executing in the Colony of Massachusetts, in New England, one Resolve of the American Congress, dated March 14, 1776,” 1776, Massachusetts Session Laws. The law from the winter of 1775–1776 that comes closest to establishing a political litmus test for gun ownership was a December 1775 Connecticut statute that ordered the disarmament of any person defaming the acts of Congress or the state assembly. See “An Act for Restraining and Punishing Persons Inimical to the Liberties of the United Colonies,” 1775, Connecticut Session Laws.

50. “An Act Obliging the Male White Inhabitants of this State to Give Assurances of Allegiance to the Same and for other Purposes therein Mentioned,” 1777, Mitchell, Statutes at Large, 9:111; and “An Act for Securing to this Commonwealth the Fidelity and Allegiance of the Inhabitants thereof, and for Admitting Certain Persons to the rights of Citizenship,” 1786, Pennsylvania Session Laws.

51. For Maryland, see “An Act for the Better Security of the Government,” 1777; “An Act to prevent and suppress insurrections,” 1778; and “An Act to raise two battalions of militia for reinforcing the Continental Army,” 1781, Maryland Session Laws. For North Carolina, see “An Act for Directing the Method of Appointing Jurors,” 1777, North Carolina Session Laws. For Virginia, see “An Act to Oblige the Free Male Inhabitants of this State above a certain age to give Assurance of Allegiance to the same, and for other purposes,” 1777, Hening, Statutes at Large, 9:281. Free blacks had been required to attend militia muster unarmed under Virginia’s pre-Revolutionary militia laws. See “An Act for the Better Regulation of the Militia,” 1738, Hening, 5:17.

52. There are two partial exceptions to this statement: On July 19, 1776, Pennsylvania ordered the blanket disarmament of non-associators, dropping its previous distinction between the disaffected and well affected. This order was repealed in 1778. Also, New Jersey passed a law authorizing the Council of Safety to tender an oath of allegiance to those persons suspected of being “dangerous or disaffected” and to try, imprison, or exile those who refused the oath. A separate provision authorized the council to disarm those “they shall judge disaffected.” It is not clear whether this latter provision referred only to those who had refused the oath and on whom the council had passed judgment, or to all persons coming under suspicion. See “An Ordinance Respecting the Arms of Non-Associators,” 1776, Mitchell, ed., Statutes at Large, 9:11; and “An Act for Constituting a Council of Safety,” 1777, New Jersey Session Laws.

53. Such a conclusion must of course remain tentative. My survey of the session laws of the thirteen colonies and Vermont through 1815, while thorough, can never be sufficient to prove an absolute negative. Nevertheless, in searching the extant printed session laws of the first fourteen states year by year for the period 1607 to 1815, I have not identified a single instance in which these jurisdictions exercised a police power to prohibit gun ownership by members of the body politic. Nor, for the reasons I have discussed above, did Michael Bellesiles or Saul Cornell accurately identify such an exercise in their analyses of the subject.

54. For an example of attempts to control the use of guns on muster day, see “An Act for regulating and governing the Militia of the Commonwealth of Massachusetts,” 1793, Massachusetts Session Laws. The federal militia act of 1792 mandated that state militia officers make returns of the state of the arms of their units, and that state adjutants general collate and submit statewide returns to the Secretary of War. The act codified what had been a haphazard practice during the Revolution. See “An Act more effectually to provide for the National Defense, by establishing an Uniform Militia throughout the United States,” 1792, in Laws of the United States of America (Philadelphia: Richard Folwell, 1796), 2:92. For examples of colonial legislation authorizing door-to-door surveys of arms, see the order of the Governor and Council, March 28, 1667, in John Russell Bartlett, ed., Records of the Colony of Rhode Island and Providence Plantations (Providence: A. Crawford Greene and Brother, 1857), 2:196; “An Act for the better regulating of the Militia of this Province,” 1747, McCord, Statutes at Large, 9:645; and “An Act for the regulating, training, and arraying of the Militia,” 1781, New Jersey Session Laws. I have found evidence that house-to-house gun censuses were actually conducted in New Hampshire in 1775 and Rhode Island in 1757 and 1775.

55. “An Act in Addition to the Act for regulating the Militia,” 1718, New Hampshire Session Laws; Acts and Laws of his Majesties Colony of Connecticut in New England (1702), 5; “An Act for Regulating the Watch in the Town of Savannah,” 1759, Allen D. Candler, The Colonial Records of the State of Georgia (Atlanta: The Franklin Printing and Publ. Co., 1904–16), 18:295; “An Act to prevent the pernicious Practice of hunting with a Gun in the Night by Fire Light,” 1774, North Carolina Session Laws; “An Act to Prevent firing of guns and other firearms within this State, on certain days therein mentioned,” 1785, Laws of the State of New York (Albany: Weed, Parsons, and Co., 1886), 2:152; “An Act to suppress the disorderly practice of firing guns, etc.,” 1774, Mitchell, Statutes at Large, 8:410; “An Act for Preventing Mischief being done in the town of Newport, or in any other town in this Government,” 1731, Rhode Island Session Laws; 6 Commonwealth, c. 12 (Virginia, 1655–56), Hening, Statutes at Large, 1:401; and 18 Charles I, c. 35 (Virginia, 1642), ibid., 1:261.

56. “An Act for preventing accidents that may happen by fire,” 1721, Mitchell, Statutes at Large, 5:252; “An Act to prevent Hunting with Firearms in the City of New York, and the liberties thereof,” 1763, Lincoln, Colonial Laws of New York, 4:748; “An Act to prevent firing of guns charged with shot or ball in the town of Boston,” 1746, Massachusetts Session Laws; “An Act for the more effectual Preventing Accidents,” 1750, Mitchell, Statutes at Large, 5:108; “An Act to Prevent the firing of guns,” 1771, Lincoln, Colonial Laws of New York, 5:244; “An Act to prevent the discharge of firearms within towns and villages,” 1812, Delaware Session Laws; “An Act to Prohibit Shooting or Firing off Guns near the Road or Highway on Boston Neck,” 1715, Massachusetts Session Laws; “An Act to Prevent Shooting with Guns and Pistols across Highways,” 1768, Rhode Island Session Laws; “An Act to prevent the hunting of deer and other wild beasts,” 1760, Mitchell, Statutes at Large, 6:46; and “An Act for the Preservation of Deer, and other Game, and to prevent trespassing with Guns,” 1771, New Jersey Session Laws.

57. “An Act for the better Regulation of Fowling,” 1717, Massachusetts Session Laws; “An Act to prevent the Killing of Deer out of Season,” 1722, Bush, Laws of the Royal Colony, 2:293; “An Act to Prevent the Killing of Deer out of Season,” 1721, Mitchell, Statutes at Large, 3:254; “An Act Against Shooting on Other Men’s Lands,” 1657–58, Hening, Statutes at Large, 1:437; and “An Act for the Preservation of Deer,” 1769, McCord, Statutes at Large, 4:310.

58. “An Act for the Preservation of Deer, and other Game, and to prevent trespassing with Guns,” 1771, New Jersey Session Laws; “A Supplement to the act, entitled, An act to regulate and discipline the militia of this state,” 1798, Maryland Session Laws; and “An Act in addition to the several Acts already made for the prudent storage of Gun Powder within the Town of Boston,” 1783, Massachusetts Session Laws.

59. “An additional act to an act, intitled, An act, to prevent killing deer at unseasonable times, and for putting a stop to many abuses committed by white persons, under pretense of hunting,” 1745, North Carolina Session Laws; and “An Act for the Preservation of Deer, and other Game, and to prevent trespassing with Guns,” 1771, New Jersey Session Laws.

60. On Bacon’s Rebellion, see Morgan, American Slavery, American Freedom, Book III. On the Regulators, see Marjoleine Kars, Breaking Loose Together: The Regulator Rebellion in Pre-Revolutionary North Carolina (Chapel Hill: University of North Carolina Press, 2002). On New Jersey and New York, see Edward Countryman, “‘Out of the Bounds of Law’: Northern Land Rioters in the Eighteenth Century,” in The American Revolution, ed. Alfred F. Young (Dekalb: Northern Illinois University Press, 1976): 37–69.

61. The first law restraining gun ownership by citizens mentioned in the secondary literature is New York’s 1911 Sullivan Law, which prohibited the ownership of concealable arms without a police permit. This raises the possibility that the legislative restraint discussed here continued for a third century, giving way only to the Progressive Era reevaluation of the police power. See Robert J. Cottrol and Raymond T. Diamond, “Never Intended to be Applied to the White Population”: Firearms Regulation and Racial Disparity—The Redeemed South’s Legacy to a National Jurisprudence,” Chicago-Kent Law Review 70 (1995): 1307–35.

62. Cornell, “Comment: A New Paradigm for the Second Amendment,” Law and History Review 22 (2004): 161–67, at 165; H. Richard Uviller and William G. Merkel, “Comment: Scottish Factors and the Origins of the Second Amendment: Some Reflections on David Thomas Konig’s Rediscovery of the Caledonian Background of the American Right to Arms,” Law and History Review 22 (2004): 169–77, at 172; and Konig, “Missing Transatlantic Context,” 153.

63. Konig, “Missing Transatlantic Context,” 153; Cornell, “Don’t Know Much About History,” 672; and Cornell, “Myth of Consensus,” 256–60.

64. United States v. Miller et al., 307 U.S. 174 (1939).

65. Saul Cornell acknowledges that the right to keep and bear arms belonged to citizens as a class that excluded aliens. He has not, however, acknowledged that the right to keep arms extended to all citizens. See Cornell, “New Paradigm,” 165.

66. See above, notes 48 and 49.

67. Scott v. Sanford, 60 U.S. 393 (1857).

68. Cornell, “New Paradigm,” 165; and Uviller and Merkel, “Scottish Factors,” 172.

69. The keeping of arms was strongly encouraged by the penalties imposed under state militia laws, and the state measured compliance by mandating an annual public display of arms. Where the state ordered those outside the militia to keep arms, it generally required them to participate in the annual “viewing” of arms. Thus at certain moments the private act of keeping arms at home became public. The Militia Act of 1792 laid down detailed specifications for militia muskets of standard dimensions and caliber. Nevertheless, militiamen brought rifles, shotguns, and fowling pieces to muster well into the nineteenth century, and the practice was officially tolerated. For an assertion that only standard militia muskets fell within constitutional protection, and a rebuttal, see Saul Cornell, “Myth of Consensus,” 261–62, and James Henretta, “Collective Responsibilities, Private Arms, and State Regulation,” Symposium: The Second Amendment and the Future of Gun Control, Fordham Law Review 73 (2004): 529–37, at 535–36. For examples of militia returns counting all types of weapons, see “Return of the Arms of the State of Pennsylvania,” 1812, Pennsylvania Archives (1852), ser. 6, 7:929; and “Abstract from the Annual Returns of the Militia of North Carolina for the Year 1809,” AG 1, Letters, Orders, Returns, etc., 1807–1812, Records of the Adjutant General’s Department, North Carolina State Archives.

70. See Uviller and Merkel, The Militia and the Right to Arms, chap. 2; and the contributions to the “Forum: Reconsidering the Second Amendment,” Law and History Review 22 (2004): 119–82.

71. Konig, “Missing Transatlantic Context,” 139–57.

72. Ibid., 152–57.

73. Neil H. Cogan, The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins (New York: Oxford University Press, 1997), 181–82. Adams later withdrew his proposed amendment.

74. Ibid., 169–82.

75. Oscar Handlin and Mary Handlin, eds., The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780 (Cambridge: Harvard University Press, 1966), 446, 575, and 624.

76. Uviller and Merkel, The Militia and the Right to Arms, 82.

77. Cumberland Gazette, December 8, 1786, January 12 and 26, and March 18, 1787.

78. Konig, “Persistence of Resistance,” 540–45.

79. Jedidiah Morse, The American Universal Geography (Boston: Isaiah Thomas and Ebenezer T. Andrew, 1793), 1:379.

80. Tench Coxe, “A Pennsylvanian,” Philadelphia Federal Gazette, June 18, 1789. For Madison’s text of the Bill of Rights, see “Amendments to the Constitution, June 8, 1789,” in Charles F. Hobson et al., eds., The Papers of James Madison, 17 vols. (Charlottesville: University Press of Virginia, 1962–1991), 12:196–210.

81. See Cornell, “Don’t Know Much About History,” 668–70; and Rakove, “Highest Stage of Originalism,” 123, n. 48.

82. Cogan, Complete Bill of Rights, 170.

83. Boston Independent Chronicle, August 6, 1789.

84. Federal Gazette and Baltimore Daily Advertiser, September 6, 1796.

85. Resolutions of the Citizens of Fayette and the Adjacent Counties, Kentucky, Kentucky Gazette, August 15, 1798.

86. “To the Freemen of Kentucky,” ibid., September 19, 1798.

87. St. George Tucker, Blackstone’s Commentaries (Philadelphia: William Young Birch and Abraham Small, 1803), 1:272–74 and 300, 2:143, and 3:414.

88. William Rawle, A View of the Constitution of the United States of America (Philadelphia: Philip H. Nicklin, 1829), 125–26.

89. Aymette v. the State, 21 Tenn. 154 (1840).

90. Ibid., 158–60.

91. See, for example, Bellesiles, “Gun Laws,” 587; and Cornell, “To Keep and Bear Arms,” 16. In 2004, Saul Cornell and Nathan DeDino acknowledged that the court in Aymette made a distinction between keeping and bearing arms, but suggested that the distinction was novel in 1840 and that it did not significantly influence Second Amendment jurisprudence. See “A Well Regulated Right,” 516–17.

92. David C. Williams, The Mythic Meanings of the Second Amendment: Taming Political Violence in a Constitutional Republic (New Haven: Yale University Press, 2003).

 

By: ROBERT H. CHURCHILL