From the book "A Well Regulated Militia - The founding Fathers and the Origins of Gun Control in America" by Saul Cornell. A book you should have if you want to get at the truth of the matter on this subject - Keith Hunt
THE RIGHT TO BEAR ARMS AS A CIVIC OBLIGATION
Given the centrality of the militia to the everyday lives of the colonists, one can appreciate their horror when they discovered that the British intended not only to foist an oppressive standing army upon them, but also to disarm the colony's militia. Rumors of British treachery spread quickly. A writer for the Boston Gazette reported that the royal governor intended to punish Americans in a fashion "more grievous to the People, than any Thing hitherto made known." The governor's plan included three components:
1ist that the inhabitants of this Province are to be disarmed.
2nd. The Province to be governed by Martial Law.
3rd. A number of Gentlemen who have exerted themselves in the Cause of their Country, are to be seized and sent to Great Britain.7
On September 28, 1768, two days after the publication of these dire warnings, two regiments of British troops landed in Boston. To prevent colonists from making good on their threats to mobilize their militia, British officials banned the importation of military stores, including gunpowder, and issued orders compelling Boston's citizens to turn in their arms. Americans were outraged and refused to comply with the demand that they disarm.
One of the most incisive attacks on British policy was authored by Samuel Adams. Adams reiterated a point made by the Boston town meeting in its petition that British citizens had a right to maintain arms for their own defense. To support this legal interpretation he quoted the eminent English jurist, Sir William Blackstone, the leading authority on English law. Adams offered the following gloss on Blackstone's interpretation of the English Declaration of Rights: "Having arms for their defense he [Blackstone] tells us is a public allowance, under due restrictions, of the natural right of resistance and self preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.'" This ancient right was not exercised by individuals acting unilaterally or in isolation, but rather required that citizens act together in concert as part of a well-regulated militia. Without legal authority, a group of armed citizens acting on their own was little more than a riotous mob.8
In defending their right to have arms, Bostonians were acting in strict accordance with the colony's own militia law. "It is certainly beyond human art and sophistry," Adams confidentiy asserted, "to prove that British subjects, to whom the privilege of possessing arms is expressly recognized by the Bill of Rights, and, who live in a province where the law requires them to be equip'd with arms, &c. are guilty of an illegal act, in calling upon one another to be provided with them, as the law directs." The decision to arm themselves was not an assertion of a new right, but the exercise of an ancient one. The colonists' actions were in accordance with well-established English constitutional principles and were sanctioned by their own militia law. Colonists recognized that the evil they encountered in British policy had a clear political purpose: to sap the colonists' capacity for political resistance. 9
The right that Adams and Bostonians asserted was described by Blackstone as the "5th auxiliary right" of British subjects, a set of "outworks or barriers" within the British constitutional system that functioned as political safeguards against tyranny. When he described the right as a means of preventing "the violence of oppression" and likened it to other political safeguards such as the right of assembly, Blackstone captured the essentially political nature of this right. Although the right was held by subjects, it was not analogous to other individual rights such as conscience. The right to have arms was linked to a particular civic purpose. It was analogous to the right to petition, another political safeguard protecting English liberty against arbitrary power. The fifth auxiliary right, the right of subjects to have arms, served a public political function and was aimed to prevent the violence of oppression, a term that underscored the right's role as political safeguard.10
Blackstone's fifth auxiliary right was legally distinct from the individual right of personal self-defense, and the two were treated separately in his influential legal treatise, Commentaries on the Laws of England. The former was a political right embodied in the English Declaration of Rights and was clearly linked to a particular civic purpose. The latter was one of the many natural rights that had slowly evolved under common law, the body of cases that English courts had adjudicated over the course of several centuries and that contained the bulk of English legal doctrine. Most important natural rights, including the right of self-defense, had been modified by the common law. Thus, once men left the state of nature and entered civil society, they renounced the untrammeled right of self-defense. "The law requires," Blackstone declared, "that the person who kills another in his own defense, should have retreated as far as he conveniently or safely can, to avoid the violence of the assault, before he turns upon his assailant." Flight, not armed confrontation, was the legal obligation of English subjects when faced with a threat to personal safety. Indeed, Black-stone contrasted the obligation to stand and fight incumbent upon subjects in time of war, which would have included militiamen bearing arms, with the legal requirement enjoining civilians to retreat to the wall before responding with deadly force to an attack Another important legal distinction between these two rights related to the power of the state: government could compel individuals to bear arms for public defense but could not force individuals to arm themselves for personal defense.11
The constellation of ideas defended by Adams and the Boston town meeting included a set of principles that would come to play a central role in early American constitutional law: an opposition to standing armies and a belief in an obligation to bear arms for the common defense in a well-regulated militia. While there was broad agreement on the importance of these interrelated principles, no single legal model emerged on how to protect them in the first constitutions drafted by Americans. While every state had militia statutes describing the obligation to serve in the militia, the majority of state constitutions drafted during the Revolutionary era omitted any discussion of the right to bear arms. Indeed, the first state constitutions were much more likely to include a prohibition on standing armies than to affirm such a right. Virginia, for example, did not explicitly protect the right to bear arms but included a provision asserting the need for a well-regulated militia. The first state to include such a right was Pennsylvania in its Declaration of Rights, which affirmed that "the people have a right to bear arms for the defense of themselves and the state." Finally, Massachusetts became the first state to protect a right to both "keep and bear arms." In addition to fusing the right to keep and bear arms into a single constitutional principle, the Massachusetts Constitution linked this ideal to an obligation to provide "for the common defense."12
In all of these first constitutional documents the right to bear arms was as much a civic obligation as it was a claim against government interference. While today's Americans treat rights as strong claims of citizens against government interference, Adams and his contemporaries believed rights were inextricably bound up with legal obligations. This characteristic of eighteenth-century rights was elaborated by Blackstone when he wrote that "the rights of persons that are commanded to be observed by the municipal law are of two sorts; first, such as are due from every citizen, which are usually called civil duties; and, secondly, such as belong to him, which is the more popular acceptation of rights." The learned English jurist then went on to note that allegiance and protection were "reciprocally, the rights as well as the duties of each other." Citizens had both a right and an obligation to arm themselves so that they might participate in a militia.13
The clearest example of how different the civic obligation to bear arms was from basic individual rights such as freedom of conscience may be found in the conflict that emerged between these two ideas in the first state constitutions. Quakers and other religious groups committed to pacifism lobbied hard to obtain exemptions from the obligation to bear arms. The state could compel citizens to bear arms, and Quakers sought an explicit constitutional protection not to be forced to bear arms. The problem of religious exemptions also provides another illustration of how different the right to bear arms for the common defense was from the common law of individual self-defense. The state could not force an individual citizen to defend himself; they could force the people to bear arms in defense of the state. Exemptions for conscientious objectors only made sense in the context of the state's right to compel citizens to bear arms for public, defense against external threats or internal enemies.
None of the early state constitutions adopted language protecting an individual right to keep or carry arms for personal self-defense. Efforts were made to protect such a right in both Virginia and Massachusetts, but in the end neither state chose to adopt an explicit statement protecting the right of self-defense. It would take another four decades before any state would explicitly affirm such a right. The right of individual self-defense would remain a matter of common law, not constitutional law. 14
THE DEBATE OVER BEARING ARMS
IN THE FIRST STATE CONSTITUTIONS:
DEFINING A CIVIC RIGHT
The chief architect of Virginia's declaration of rights was George Mason, a wealthy Virginia planter who was one of the largest slaveholders in the state. Contemporaries described him as the modern embodiment of Roman virtue. A leading advocate for colonial independence, Mason also became an outspoken champion of the militia, urging his fellow citizens to enact a law to put the colony's militia in a state of readiness for possible war with Britain. Mason's vision of the militia reflected his own patrician values and the traditional Whig ideas of Sidney and others who praised the militia ideal and believed that social stability required that an armed citizenry be led by "gentlemen of the first fortune and character." Mason's preference for this traditional Whig conception was evident in the following resolve he drafted on January 17,1775, for the Fairfax County Committee of Safety, an important institution responsible for coordinating the colony's military efforts.15
Resolved, That this Committee do concur in opinion with the Provincial Committee of the Province of Maryland, that a well regulated Militia, composed of gentlemen freeholders, and other freemen, is the natural strength and only stable security of a free Government.
Mason's emphasis on the need for the militia to be composed of property holders reflected a view common among members of Virginia's gentry elite that it was dangerous to arm the "rabble." Without the guidance of gentlemen, an armed population might easily become a mob, not a well regulated malitia. 16
TO BE CONTINUED
AH ARE YOU GETTING THE REAL TRUTH OF THE HISTORICAL TRUTH THAT WOULD LEAD TO THE 2ND AMENDMENT?
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