Once More unto the Breach, Dear Friends

In the 1990s the issue of gun control raised political passions to a fevered pitch. It is perhaps to be expected that some of that passion has spilled over into the scholarly debate about the meaning of the Second Amendment. I see that passion in the visceral responses my work has generated, in Saul Cornell’s reflexive impulse to dismiss my work with crude labels, and in David Konig’s unwillingness to engage fully the nuances of my thesis, which is neither strong nor weak, but certainly complex. In this context I appreciate William Merkel’s courteous engagement of the full complexity of my argument.

READ MORE: The History Guns in American Culture

My own response to the passions on both sides of the issue has been to dive into the sources and let the evidence speak for itself. To be sure, I have in my essay identified what I see as the essential patterns into which that evidence falls, but I have also identified contrary evidence so that readers may judge these patterns for themselves.

Let me then reiterate the contributions and corrections to the field that I have sought to offer here, while responding to my critics. First, the civic rights school has adopted and indeed reinvigorated earlier assertions of a unified Anglo-American understanding of the right to keep and bear arms. David Konig is the most vigorous proponent of the salience of this “transatlantic context,” and defending it is one of the central concerns of his criticism here.

I have never argued that the transatlantic context was irrelevant, and indeed I have mentioned the contributions that Konig’s work has made to our understanding of the ratification debates.[1] The problem is that the transatlantic context has lent itself to unwarranted emphasis and misuse. Konig here offers two new illustrations of this tendency. I have not argued that Mrs. Barrett’s militiaman was a constitutional authority. Instead, I suggest that scholars need to pay attention to his rights consciousness. Konig would have us submerge his voice in the metropolitan condescension of the British imperial officer corps, represented by Thomas Simes, merely because Simes’s military manual was published the following year in Philadelphia. Contextualism can illuminate, but it can also conceal, depending on the choice of contexts. In this instance, I do not find Konig’s choice of contexts compelling.[2]

Konig’s discussion of the collapse of the universal militia shows a similar tendency to downplay transatlantic differences. His assertion that the universal militia collapsed “with Independence” is not supported by the secondary texts that he cites.[3] The primary evidence also undercuts his assertions. Enrolled militiamen could indeed hire substitutes to go out on campaign for them, but they were still obligated to muster and exercise with their companies as provided by law. Thus a sizable portion of the post-Revolutionary generation underwent military training for a significant span of their adult lives. In contrast, very few men in England were ever obligated to train. Konig is correct that New England militia laws ordered towns to provide stocks of public arms for the use of poor militiamen. The Massachusetts provision that Konig cites had been law since 1693.[4] But most towns habitually shirked this responsibility. In March 1775, for example, some considerable part of the militia of Massachusetts reported 21,549 guns in their possession. Of this total only 68 guns were returned as “town stock,” strong evidence that even in this period of grave crisis, the towns had not met their responsibilities.[5] There is no reason to believe that the towns complied in the early national period any better than they had at the outset of the Revolution. In the early national period, contrary to Konig’s assertions, most militiamen brought their own arms to muster, at least in the North.

To be fair, Konig has been misled partly by John Mahon’s misrepresentation of the records of the Danvers militia. Kevin Sweeney brought the misleading passage to my attention last year, and we each traced it back to the original source, the 1797 return of a Danvers militia regiment published in the Historical Collections of the Danvers Historical Society. The return showed that 265 sergeants and rank and file militiamen brought 228 muskets to the muster field. The company thus returned an armament rate of 86 percent, fairly typical for the state. Though Mahon misidentified the document as a selectmen’s report and interpreted all of these guns to be public arms, there is no mention of any public arms on the return.[6]

Konig is on more solid ground when he asserts that some states to the south of New England began to purchase, store, and distribute public arms in large numbers at the turn of the nineteenth century. Virginia in particular distributed tens of thousands of public arms in the first decades of the nineteenth century, while New York established large arsenals and also sold arms to individual militiamen. In general, after 1792 the militia did not enroll as high a percentage of the adult male population as it had in the colonial era, and some of those at muster may have borne public arms. Nevertheless, the contrast with England’s force of 30,000 militiamen armed entirely from government stores remained stark. Konig’s assertion that “many state militias came to replicate that British experience” may describe the 1850s, but it does not capture the early national experience.[7]

Konig also contends that I have over-read what amount to simple changes in policy, particularly with concern to impressment. It is true that providing arms for the militia was a major concern within the public policy debates of the early republic. Some states chose to maintain large arsenals rather than to rely on impressment to arm the militia in a crisis. It does not follow, however, that impressment remained a viable policy choice. States abandoned the impressment of arms not only because it was inefficient, but also because it was politically untenable. As a result, to the extent that this was a policy choice, it quickly became irreversible. In congressional debates over the arming of the militia, one finds clear indications that the impressment of arms was no longer a viable policy option.

In the debate over the militia bill of 1790, Jeremiah Wadsworth balked at a proposal that the federal government should provide arms for poor militiamen. He asked, “whether there was a man within the walls, who wished to have so large a portion of the community armed by the United States and liable to be disarmed by the government, whenever it should be thought proper?” The same issue was a major theme in the 1807 debate over a bill for arming the militia. Many congressmen objected to the government retaining any property rights in the arms to be distributed, fearing that if the arms remained public property the government would have the power to recall the arms during a crisis. These congressmen insisted that the best course was to grant militiamen property rights in the arms. Congressman Rhea of Tennessee warned that “he would never agree that the militia should hold their arms but as their own property and independent of the United States; and he would never give a vote which should put it in the power of the United States to recall the arms once bestowed.” Congressman Fiske argued that “the citizens of this country should not be placed in such a situation that their arms could be taken from them at any time.”[8]

The assumption underlying these statements was that private arms were immune from seizure in a crisis. In arguing that the arms would be safe from seizure only if owned by individual militiamen, these congressmen perceived an immunity that transcended any common law or Fifth Amendment right to monetary compensation for the public use of private property. Furthermore, they expected that ownership by individual militiamen would shield the arms from seizure in precisely those circumstances in which governments had previously impressed private arms. It is thus difficult to reconcile these statements with a legal, political, and constitutional climate that envisioned the return of impressment as a viable policy choice.

Konig has identified a lapse in writing on page 148, line 9 of my essay. The third word of that sentence should read “colonies.” Konig also complains that footnote 27 is deficient. Here, I think he and I brought different concerns to the text. In the last sentence of the text paragraph supported by this footnote I was responding to a reader who asked whether the language of keeping arms in the militia statutes continued into the early republic. Konig read the sentence with a different question in mind. Had I anticipated Konig’s particular concern, I would have discussed the 1785 slave code of Virginia, which provided that “no slave shall keep any arms whatever”; the Mississippi slave code of 1822, which provided that “no negro or mulatto shall be suffered to keep or carry any firelock of any kind, any military weapon, or any powder or lead”; the Virginia and Maryland slave codes of 1832, which used the same language; the Florida slave code of 1828, which ordered the whipping of slaves “who shall use, carry, or keep any fire arms, ammunition, or any weapon”; and the post-Civil War black codes of Mississippi, which provided that “no freedman, free negro, or mulatto … shall keep or carry firearms of any kind, or any ammunition, dirk or bowie knife.” I would also have referred Konig to the North Carolina justice of the peace manuals of Francois Xavier Martin (1804) and John Haywood (1808). Xavier describes North Carolina law as providing that “No slave shall go armed with gun, sword, club, or other weapons, nor shall keep such arms.” Finally, I would reiterate St. George Tucker’s complaint that the English Bill of Rights had been interpreted to authorize game laws enacting “the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game.” Under these game laws, Tucker observed, “the right of keeping arms is effectually taken away from the people of England.”[9]

Thus in response to Konig’s larger point, the colloquial application of the language of keeping arms to refer to the individual possession of guns outside of the context of militia service remained in common usage as late as the Civil War.

We are left then with Konig’s assertion that Americans in the colonial and early national periods did not regard their right to own firearms as different from their right to own any other form of property. I leave it to readers to determine whether that assertion is tenable in view of the evidence I have presented.

Besides probing the use of the transatlantic context, the article contributes by encouraging historians of gun regulation to distinguish between the state’s emergency military powers and its everyday civil police powers. William Merkel thus raises the most interesting issue in the three comments when he questions whether I am drawing too neat a line. It is a fundamental question. I cannot but take to heart his observation that colonial governance frequently involved a complex overlap of jurisdictions and legal rationales.

While I described the military powers of the state as extraordinary, I never said that their exercise was rare. Clearly war was a constant presence in colonial America in the mid- and late eighteenth century. It may also be true that the line between the military and the police power was murkier in the seventeenth century than in the eighteenth. Finally, the military power never received the kind of theoretical exposition that Blackstone lent to other areas of Anglo-American law.

Nevertheless, impressment was sufficiently unpopular that officials were forced to justify and limit its use. Thus the power of impressment was limited by statute in England and America to usage in time of war. In North Carolina, acts of impressment, imprisonment without trial, and searches without warrant during the Regulator insurgency and during the Revolution led to legal retaliation against the officials carrying them out. To protect these officials, the legislature passed acts of indemnity in 1771 and again in 1783 to hold state officers harmless for their “diverse acts, which could not be justified by the strict forms of law, and yet were necessary.” When Continental soldiers complained of the impressment of their guns at the end of their terms of service in 1775, Nathanael Greene also justified the seizure with a reference to martial law: “Undoubtedly the detaining of arms being private property is repugnant to many principles of civil and natural law, and hath disgusted many, but the great laws of necessity must justify the expedient till we can be otherwise furnished.”[10] Certainly the exercise of power during time of war was messy. But when pushed to justify their actions, American officials described the impressment of arms as lying within a realm of state action beyond the pale of civil law.

Merkel presents a second concern about the issue of gun ownership, which my essay addressed only briefly. He argues that I have misread the evidence of militia armament in the first decade of the nineteenth century and makes special reference to Virginia as a test case. Let me state first of all that I have never suggested anywhere that Virginia militiamen were hiding their guns from the state in the nineteenth century, though clearly some did so in the Revolution. Nevertheless, I am confident that neither the 1806 return that Merkel reports here nor the 1810 return I discussed in detail in William and Mary Quarterly three years ago gives an accurate representation of gun ownership in Virginia. To illustrate the problem, consider the complaint of Samuel Coleman, Virginia’s Deputy Adjutant General, at the end of 1809 that on the return he had just completed, “the arms returned are so far short of the number actually issued. What the deficiency actually is cannot at present be ascertained, as many have been issued since the returns from which the enclosed is made up have been received. Our next brigade returns, it is hoped, will in that respect exhibit a more accurate statement.” The state had to that point issued 21,767 stands of public arms, but the return showed fewer than 14,000 muskets in the state as a whole. To take the return at face value, we would have to conclude that there were no private arms in Virginia at all and that a third of the public guns had vanished.[11] I stand by the conclusion of my article in the William and Mary Quarterly that for a host of reasons the published national returns significantly undercounted militia armament rates.[12]

Merkel protests that I have not accounted for anecdotal evidence that supports the Virginia returns. Surely, he suggests, Congressman Varnum’s political allies in the Virginia dynasty would have alerted him to any undercount. There are two problems with this assertion. It assumes that information at the top of the reporting chain is more accurate than information at the local level—a highly dubious assumption. If the published national return on which Varnum relied in making his report concealed critical details, reporting gaps, and omissions (which it did), it is not clear that Varnum would be aware of it. Merkel’s objection also ignores the politics of the issue. Virginia had embarked on the most ambitious public armament program conducted by any state. That program was expensive and Virginia was looking for federal assistance. The three governors of Virginia mentioned had little incentive to correct Varnum’s misapprehension.

Contrary to Merkel’s insistence, I have not assumed that militiamen complied with their statutory obligations. Rather, I have measured gun ownership and appearance at muster with a careful and systematic examination of the available evidence. Merkel is no doubt correct that if ownership rates in the colonial period were low, then my assertion that early Americans became accustomed to keeping arms becomes less tenable. The available evidence of gun ownership in colonial probate inventories, however, supports my argument. For example, Kevin Sweeney has found guns in at least two-thirds of probate inventories in Hartford County, Connecticut in the second half of the seventeenth century and similar rates in Hampshire County, Massachusetts from King Philips War to the Revolution. Gloria Main’s study of probate inventories covered six Maryland counties from 1650–1720. Main found arms, the vast majority of them guns, in three-quarters of the estates left by young fathers in this period.[13] I stand by my conclusion that colonial Americans were accustomed to keeping arms.

We are left with Saul Cornell’s response to the two central questions raised by my work, the reach of the state’s police power and contour of the right to keep arms. Cornell and I disagree on Scribble Scrabble and the Selfridge case. Scribble Scrabble describes a constitutional “security of arms” that encompasses both the right to keep them and to bear them for the common defense. The Selfridge case centered on the right of self-defense. The defense’s failure to assert a constitutional right to keep arms has no historical significance.

Cornell’s description of the reach of the police power in Jacksonian America is more important and worth repeating in full:
The interesting question for historians is what happened when legislatures enacted laws that severely limited the right to own and use weapons intended primarily for self-defense. During the Jacksonian era, this is precisely what happened as states reacted to a widespread perception that handguns and bowie knives posed a serious threat to social stability. Legislatures acted on this perception by passing the first comprehensive laws prohibiting handguns and other concealed weapons. Most of the legal challenges to these gun/knife control statutes were dismissed by the courts, including the case Churchill uses as one of the anchors for his argument, Aymette v. State.[14]

In this passage Cornell clearly suggests that multiple states enacted laws that banned the possession of handguns, and that these laws survived judicial scrutiny. He cites his recent article in Fordham Law Review in support of this assertion. In that article, Cornell describes state laws banning the carrying of concealed weapons, which he acknowledges were extensions of the colonial practice of regulating the time, place, and manner in which guns could be used.[15] On this we agree. Cornell, however, argues that a “second wave” of statutes went beyond use to regulate possession and sale. He cites the 1837 Georgia statute prohibiting the possession, sale, or carrying of concealable weapons and a “similar” Tennessee statute enacted in 1838.[16]

The problem here is that the Tennessee statute, which was the law at issue in Aymette, pertained only to knives.[17] In emphasizing the “Tennessee Model,” Cornell minimizes the case directly bearing on gun control, the Georgia decision Nunn v. State.[18] The court found the law’s ban on the carrying of concealed weapons to be constitutional but rejected the provisions banning the sale, possession, and open carrying of firearms as an unconstitutional infringement of the right to keep and bear arms.[19]

In light of the evidence, Cornell can only reach his conclusion by conflating guns and knives and by leaving the connection between the Georgia statute and Nunn v. State obscure. A full and accurate characterization of the pertinent statutes and case law undermines his conclusion and extends my own findings into the antebellum era: every state except one in this period observed a legislative restraint consistent with a legal immunity surrounding the possession of firearms by citizens. The only legislature to violate that immunity suffered a constitutional rebuke.

Yet, Cornell is correct that, according to the Aymette decision, only militarily useful weapons were protected under the right to keep arms. Cornell acknowledges that fowling pieces and other long guns qualified for constitutional protection. I appreciate the concession, but I must nudge him a bit further. In an age in which a brace of pistols was part of the statutory armament of a cavalryman, his assertion that pistols lay outside of this sphere of constitutional protection is untenable.[20] The Georgia statute that he cites illustrates this basic military reality: the law drew a distinction between “horseman’s pistols” and concealable pocket pistols. It exempted the former from regulation.[21] So it would be more accurate to say that the logic of Aymette suggested that concealable pistols might lie beyond the protection of the right to keep arms. I would simply add the observation that Tennessee chose not to put that logic to the test, and the only state that did lost in court.[22]

If Cornell and I can reach agreement on the contours of the right to keep arms described in Aymette, we will be left with the question of when that right received authoritative constitutional recognition. Cornell sees that recognition coming as the result of the liberal individualism of Jacksonian America. I see it coming significantly earlier and point to St. George Tucker as making the first authoritative connection between the right to keep arms and the Second Amendment. Cornell offers in response the beginnings of an “architectonic” analysis of Tucker’s thought. I am willing to be persuaded that we should read these passages differently, and I look forward to Cornell’s further contributions on Tucker. My problem with his initial comment here is that, without ever addressing the passages that I cite, Cornell concludes that Tucker’s recommendation that emancipated slaves be prohibited from keeping arms “is the only example in Tucker’s voluminous writing” in which he discusses a distinct right to keep arms.[23] Cornell does not illuminate or historicize the meaning of the passages of Tucker’s edition of Blackstone that comment on the Second Amendment and England’s game laws. He simply effaces these texts.

I would add a final word on the scope of our disagreement. Konig cites the following formulation from my essay: “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.” He notes that it is very close to the new civic rights paradigm. Cornell asserts that “[t]he unqualified right to keep arms only applied to keeping weapons related to militia service.”[24] Again, we seem quite close (perhaps quibbling only over certain types of pistols). It seems to me that the remaining distance is traceable to an ambiguity in the civic rights paradigm concerning who might appeal to this right to keep arms. If my colleagues are arguing that only enrolled members of the militia might assert the right they are describing, then we are indeed far apart. But if they concede that the right to keep arms was guaranteed to all citizens, then we are almost home. There remains disagreement over when this right gained authoritative recognition (1803 or 1840) and over when and how Americans came to believe that they had such a right. On those questions I stand by the modest historical explanation offered here.

Notes

1. See Robert H. Churchill, “Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment,” Law and History Review 25 (2007): 141.

2. Somewhat more compelling is the officer’s lament that Konig attributes to Joseph Hosmer. The statement cited, however, was not spoken by Hosmer. It is from a post-Revolutionary account of the battle by Thaddeus Blood. Blood was not an officer, but a rank and file militiaman. Nor is the cited observation a lament. In his account, Blood explained that many officers on the field lacked legal commissions, being only “nominally appointed” by the Provincial Congress, “and that all the services performed were voluntary both of officers and men.” After the fight at the bridge, Blood observed that the militia divided, and that “everyone appeared to be his own commander. It was thought best to go to the east part of town and take them as they came back. Each took his own station.” The misinterpretation of Blood’s statement as a lament is common in the secondary literature. The misattribution is Konig’s alone. See the “Deposition of Thaddeus Blood regarding April 19, 1775,” John Shepard Keyes Papers, 1837–1908, Box 1, folder 2, Special Collections, Concord Free Public Library; and Robert A. Gross, The Minutemen and Their World (New York: Hill and Wang, 1976), 126.

3. See David Thomas Konig, “Arms and the Man: What Did the Right to ‘Keep’ Arms Mean in the Early Republic,” Law and History Review 25 (2007): 181–82. According to Marcus Cunliffe, for example, the unclassified militia established under the Militia act of 1792 remained a viable institution, albeit one of limited military utility, into the 1820s, before withering under the politicized ridicule of the 1830s and collapsing altogether in the 1840s. William Riker’s narrative is entirely consistent with this. See Marcus Cunliffe, Soldiers and Civilians: The Martial Spirit in America, 1775–1865 (Boston: Little, Brown, 1968), 179–212; and William H. Riker, Soldiers of the States: The Role of the National Guard in American Democracy (Washington: Public Affairs Press, 1957), 21–40. For a graphic illustration of the gradual process of decline, see Chart I, Riker, Soldiers of the States, 25.

4. “An Act for Regulating of the Militia,” 1693, Massachusetts Session Laws.

5. Warlike Stores in Massachusetts, 1774, William Lincoln, ed., The Journals of Each Provincial Congress of Massachusetts in 1774 and 1775…. (Boston, 1838), 756. We do not know the number of militiamen covered by this partial return, and thus there were almost certainly additional public guns in towns that made no report. Nevertheless, it is clear from the return that public guns were remarkably scarce.

6. Compare John K. Mahon, The American Militia: Decade of Decision, 1789–1800 (Gainesville: University of Florida Press, 1960), 42 with “Return of the Sixth Regiment of Militia,” Historical Collections of the Danvers Historical Society (1913–1987), 3:17. Mahon also mis-cites the source document as found in volume 2, page 17. The material on that page is unrelated.

7. See Konig, “Arms and the Man,” 180. The best measure of the viability of the militia during the post-Revolutionary generation is the annual return of the militia of the United States for 1810. For a thorough analysis of this return, see Robert H. Churchill, “Gun Ownership in Early America: A Survey of Manuscript Militia Returns,” William and Mary Quarterly, 3d ser., 60 (2003): 635–40 and table iv.

8. Speech of Jeremiah Wadsworth, December 16, 1790, Linda Grant De Pauw, ed., Documentary History of the First Federal Congress of the United States of America, 14 vols. (Baltimore: Johns Hopkins University Press, 1972–1997), 14:76; Speeches of John Rhea and James Fisk 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), 18:2184 and 17:1031. For similar assertions that the arms should be made property of individual militiamen so as to secure them from seizure, see Speech of Ezekiel Bacon, ibid., 17:1041; Speech of James Holland, ibid., 18:2177; Speech of William Ely, ibid., 18:2178; Speech of John Smilie, ibid., 18:2192; and Speech of Joseph Varnum, ibid., 18:2192–93.

9. “An act concerning slaves,” 1785, William W. Hening, ed., The Statutes at Large, Being a Collection of all the Laws of Virginia (Richmond: Franklin Press, 1809–1823), 12:182; “An Act to reduce into one, the several acts, concerning Slaves, Free Negroes, and Mulattoes,” 1822, Mississippi Session Laws; “An Act to amend an act entitled, ‘an act reducing into one the several acts concerning slaves, free negroes, and mulattoes, and for other purposes,'” 1832, Virginia Session Laws; “An act concerning Free Negroes and Slaves,” 1832, Maryland Session Laws; “An Act Relating to crimes and misdemeanors committed by slaves, free negroes, and mulattoes,” 1828, Florida Session Laws; “An Act to punish certain offences therein named and for other purposes,” 1865, Mississippi Session Laws; Francois-Xavier Martin, The Office and Authority of a Justice of the Peace (New Bern: Martin and Ogden, 1804), 294; John Haywood, The Duty and Authority of Justices of Peace, and of Sheriffs, Coroners, and Constables, etc. according to the Laws of the State of North Carolina (Raleigh: William Boylan, 1808), 247; and St. George Tucker, Blackstone’s Commentaries, 5 vols. (Philadelphia: William Young Birch and Abraham Small, 1803), 1:300 and 2:143.

10. See “An Act for Ordering the Forces in the Several Counties of this Kingdom,” 13 & 14 Charles I, c. 3 (1662); “An Act for Providing Against Invasions and Insurrections,” 1777, Hening, Statutes at Large, 9:291; “An act to indemnify such persons as have acted in defense of Government,” 1771, and “An act to indemnify such persons who have acted in defence of the State,” 1783, North Carolina Session Laws; and Greene to Samuel Ward, Sr., January 4, 1776, 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), 1:177.

11. See Samuel Coleman (D.A.G) to the Governor, December 25, 1809, Calendar of Virginia State Papers (Richmond: James E. Goode, 1881), 10:78. The Virginia return for 1809 to which Coleman refers is reported on the Return of the militia of the United States for 1811, American State Papers, 1:298–301.

12. Churchill, “Gun Ownership in Early America,” 615–42.

13. Kevin Sweeney, “Guns along the River: Possession and Use of Firearms in the Connecticut Valley from 1640–1800,” paper presented at the Boston Early American History Seminar, February 3, 2005 (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. The best general survey of probate research on gun ownership is still James Lindgren and Justin Heather, “Counting Guns in Early America,” William and Mary Law Review 43 (2002): 1777–1842.

14. Saul Cornell, “Early American Gun Regulation and The Second Amendment: A Closer Look at the Evidence,” Law and History Review 25 (2007): 199.

15. Saul Cornell and Nathan DeDino, “A Well Regulated Right: The Early American Origins of Gun Control,” Fordham Law Review 73 (2004): 513–14.

16. Ibid., 514–15.

17. “An Act to suppress the sale and use of Bowie Knives and Arkansas Tooth Picks in this State,” 1838, Tennessee Session Laws.

18. “An Act to guard and protect the citizens of this State, against the unwarrantable and too prevalent use of deadly weapons,” 1837, Georgia Session Laws; Nunn v. State, 1 Ga. 243 (1846).

19. Ibid., 251.

20. “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), 2:95.

21. 1 Ga. 243, at 246.

22. It is possible that if confronted with a statute similar to Georgia’s, the Tennessee court would have applied the logic of Aymette by drawing a line between keeping firearms and keeping knives, on the basis that all firearms might have some military utility.

23. Cornell, “Early American Gun Regulation,” 202.

24. See Churchill, “Gun Regulation,” 167, Konig, “Arms and the Man,” 181, and Cornell, “Early American Gun Regulation,” 200.

By ROBERT H. CHURCHILL