USA GUN CONTROL DEBATE - A WELL REGULATED MILITIA - The Founding Fathers and the Origins of Gun Control in America
by Professor Saul Cornell
CHAPTER ONE
ENGLISH TYRANNY VERSUS AMERICAN LIBERTY
BEARING ARMS IN REVOLUTIONARY AMERICA
In June of 1768 John Hancock's schooner Liberty returned to Boston from the Portuguese port of Madeira with its cargo hold laden with wine. Crown officials were eager to make an example of Hancock, whose penchant for smuggling was well known. After inspectors confirmed their suspicions that the appropriate duties had not been paid, customs officials seized the ship. Making an example of the Liberty proved to be a grievous error in judgment. "The popularity of her owner, the name of the sloop," and a "general aversion" to customs officials and "parliamentary taxation" worked to "inflame the minds of the' people." Hancock was a particularly poor choice to single out for prosecution since he was also an influential member of Bostons branch of the "Sons of Liberty" the group that had sprung up in cities and towns across America during the Stamp Act tax protests three years earlier. An angry crowd soon assembled on Hancock's wharf to protest the seizure. Wielding "clubs, stones and brickbats," Hancock's supporters attacked the revenue officers and drove them from the scene. As word of the Liberty Riot spread throughout the town, large crowds began assembling, and by evening more than a thousand Bostonians had taken to the streets. An angry crowd attacked the homes of crown officials and forced them to seek refuge aboard a Royal Navy vessel anchored in the harbor. Incensed by Boston s defiance and lawlessness, the royal governor, Frances Bernard, requested that British troops be dispatched to the town to restore order. Americans now faced the nightmarish prospect of a standing army garrisoned in their midst, enforcing the dictates of a distant government with little concern for their liberties.1
The Liberty Riot was a decisive turning point in American relations with Britain. Samuel Adams, an outspoken champion of American rights and another prominent Son of Liberty, urged Bostonians to "behave like men" and "take up arms immediately and be free." Adams was hardly the only Bostonian to suggest this course of action. Governor Bernard reported that the mob had been harangued by leaders who declared, "We will support our Liberties, depending upon the strength of our own Arms." The use of a standing army without the legislature's consent was a dear violation of British constitutional principles. Such an unconstitutional use of force could have no legal sanction and might legitimately be met with force of arms. Adams and others did not claim to be asserting novel arguments, but rather based their opposition to British policy on well-established English legal principles.2
The legal and constitutional arguments made by Adams gained additional force from history itself. The Bostonians who took to the streets to protest the seizure of the Liberty were steeped in the lessons of the past, the struggles of the Roman Republic and the more recent battles between English Whigs, the champions of Parliamentary power, and Tories, the supporters of Royal prerogative. History was not simply a subject consigned to the pages of leather-bound volumes detailing the events of bygone days. Americans looked to the past for guidance. An impressive parade of essays signed with the names of historical figures appeared in the press to offer comments on contemporary politics, forging a close link between past and present. Essays signed "Brutus," a hero of the Roman Republic, or "Algernon Sidney," a more recent hero from seventeenth-century English history, filled the pages of newspapers. The use of pseudonyms shielded writers from reprisals and allowed them to affirm their kinship with a host of heroic figures who personified liberty and virtue. Among the favorite pen names adopted by Samuel Adams during this troubled time was "Vindex," a provincial Roman statesman who had opposed the tyranny of the corrupt monarch Nero and denounced the decadence of Imperial Rome. Once again, it was time for virtuous citizens, the modern heirs of Vindex, to step forward to oppose tyranny. One Boston almanac placed an image of Sidney's Discourses Concerning Government on its cover. For those readers unfamiliar with this work, the publisher noted that Sidney was a noble martyr to English liberty who had been beheaded during the Reign of Charles II." Described as the personification of virtue, a man in whom "the spirit of the ancient Republics revived," Sidney's influential treatise became an important political textbook for Americans of Adams's generation. It affirmed a principle that would become the cornerstone of American thinking about the relationship between liberty and arms. "In a popular or mixed government," Sidney wrote, "the body of the people is the public defence, and every man is armed and disciplined." When Adams and other Bostonians urged citizens to take up arms to defend their liberty against British tyranny, they did so with a confidence derived from their belief that America had taken Sidney's maxim to heart. In America, the body of the people were armed and well organized.3
While Bostonians debated the appropriate course of action to take in response to British policy, the town's selectmen issued an order that their public arms be cleaned and placed on display in the town hall. Governor Bernard viewed the gesture as deliberately provocative, and he informed the Crown that the muskets were placed on view "to remind the People of the Use of them." Despite this assertive gesture, Bostonians had not yet abandoned all hope of seeking a peaceful resolution to their disagreement with the Crown. The town meeting petitioned the governor, stating the colonists' grievances and asserting their understanding of their rights as English subjects. The petition was deemed sufficiently important that copies were printed as a broadside and widely distributed. Colonists asserted three interrelated constitutional principles grounded in their own views of British law. First, a standing army garrisoned among the people without their consent was inconsistent with liberty. Second, colonists had a right to "have Arms for their Defenses." To support these two legal claims they invoked the authority of the English Declaration of Rights of 1689, one of the most influential statements of English constitutional principles. The Declaration of Rights declared that "the subjects being Protestants may have arms for their defense." Bostonians put their own distinctive gloss on this English idea, framing it in strongly collective terms by noting that it was a legal principle that "was "well adapted for the necessary Defense of the Community." Finally, colonists anchored their claims by referring to their colony's militia law, describing it as a "wholesome law of the Province" that required each householder to provide himself with a musket to meet his obligation to participate in the militia. Citizens of Massachusetts had done more than simply invoke Sidney's injunction about the necessity of an armed citizenry; they had written its underlying principle into their own laws.4
If a standing army symbolized tyranny, a citizens' militia was its antithesis, embodying virtue and liberty. The response of Massachusetts to British policy was decisive and included a call for a colony-wide convention to assemble to discuss the crisis. Towns across the province readily complied with this request. In addition to sending representatives to the convention, individual towns readied their militia for action. Indeed, one week after the Boston town meeting's petition was published, the Boston Gazette reported that selectmen in a neighboring town had ordered that a sufficient store of gunpowder be acquired to equip the local militia. The colonel of the local militia in that town "has declared his intention to order a strict Enquiry into the state of his Regiment, respecting Arms, Ammunition, &c." Colonists who bore arms did not act as isolated individuals, but rather acted collectively for the common defense, and did so within a clear set of legal structures established by colonial and British law.5
It would be impossible to overstate the militia's centrality to the lives of American colonists. For Americans living on the edge of the British Empire, in an age without police forces, the militia was essential for the preservation of public order and also protected Americans against external threats. One contemporary writer observed that for New Englanders the "near neighbourhood of the Indians and French quickly taught them the necessity of having a well regulated militia." The militia served an important social role as well. Musters were occasions for friends and neighbors to come together to drill and celebrate. Before the development of modern political parties, the militia was one of the central means for organizing citizens. When American colonists spoke about the importance of a well-regulated militia, they were not simply reciting a tired political cliche lifted from the pages of an esteemed political treatise; they defended an institution that was central to their way of life.6
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:
1st that the inhabitants of this Province are to be disarmed. 2d. The Province to be governed by Martial Law. 3d. 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 confidently 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, 8Cc. 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 untrammelled 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 militia.16
Mason took a leading role in drafting Virginia's declaration of rights, and his efforts reflected ideas he had developed in his earliest public writings about the need for a well-regulated militia. Edmund Randolph, another influential figure in Virginia politics, remarked that Masons proposal "swallowed up all the rest, by fixing the grounds and plan, which after great discussion and correction, were finally ratified." Masons first draft did provoke some controversy among Virginians because it affirmed "that all Men are born equally free and independent." Some members of the Virginia convention opposed such language, fearing that it might undermine the institution of slavery and incite slaves to rebel. Edmund Randolph recollected that such objections were easily satisfied by reminding delegates that "with arms in our hands, asserting the general rights of man, we ought not to be too nice and too much restricted in the declaration of them." The connection between the militia and the slave patrols that protected Virginians against the threat of slave insurrections was well understood by Mason and others. Although the committee followed Mason s language closely, the affirmation of the need for a well-regulated militia departed from his earlier statements in one important respect. It abandoned any reference to a militia composed or officered by gentlemen. The final language adopted by Virginia asserted that the militia was "composed of the body of the people."17
When the committee charged with producing the declaration of rights revised Mason s original draft, they settled on the following language:
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that, in all cases, the,military should be under strict subordination to, and governed by, the civil power.18
Not all Virginians were satisfied with Masons militia-focused language. Thomas Jefferson, perhaps the most forward-looking and innovative legal thinker involved with the framing of the Virginia Constitution, wished to include an expansive statement of the right to keep arms. Jefferson s formulation would have severed the connection between such a right and any obligation to bear them in a well-regulated militia. An admirer of the Italian Enlightenment theorist Cesare Beccaria, Jefferson endorsed Beccaria's observation that laws prohibiting individuals from carrying firearms only worked to the benefit of criminals. In essence, Beccaria was the first modern theorist to argue that when firearms are outlawed, only outlaws will have firearms. Jefferson copied Beccaria's discussion of this matter into his legal commonplace book in a section dealing with government policy. In an alternative constitutional proposal that Jefferson circulated among members of the convention, he sought the inclusion of a provision protecting a more robust individual right to keep and carry firearms outside of the context of the militia. Had Jefferson succeeded, the Virginia Declaration of Rights would have asserted that no free man shall be debarred the use of arms." This language proved too bold for his contemporaries, and Jefferson quickly emended his draft language to narrow the scope of this right, effectively eliminating the right to carry arms. The revised proposal suggested that the Virginia Declaration of Rights include language asserting that "no free man shall be debarred the use of arms [within his own lands or tenements]." This modified Beccarian model affirmed an individual right to keep arms for private purposes. Yet neither the expansive Beccarian model nor the more limited modified model of keeping arms was ultimately included in the Virginia Declaration of Rights. The convention chose instead to retain Mason's formulation of this right, which focused on a well-regulated militia.19
Virginia's constitution was crafted by members of a planter elite who were often compared to the great leaders of the Roman republic, men such as Brutus or Cato. Pennsylvania's constitution, by contrast, owed far more to plebeian ideas than to patrician ones. The colony was often described by contemporaries as the '"best poor man's country," and its constitution was framed by men of humble origins who spoke on behalf of the laboring classes and the industrious middling sorts, such as tradesmen and small farmers. One prominent group who took a leading role in crafting the Pennsylvania Constitution hailed from the western part of the state. These men were animated by long-standing grievances against the eastern Quaker elite who had dominated the legislature for most of the colonial period. For more than a decade prior to American independence, backcountry Pennsylvanians pressed for a militia law to help them protect their communities against threats from Indians along the frontier. The Quaker-dominated assembly rebuffed these appeals, preferring to negotiate, not fight, with the Native population. The most notorious incident in this decade-long struggle was the Paxton Boys' Uprising, the massacre of a group of defenseless Conestoga Indians by backcountry Pennsylvanians in 1763. "The Apology of the Paxton Volunteers" framed their grievances against the Pennsylvania government in the following terms:
When we applied to the Government for Relief, the far greater part of our Assembly were Quakers, some of whom made light of our Sufferings 8c plead Conscience, so that they could neither take Arms in Defense of themselves or their Country, nor form a Militia law to oblige the Inhabitants to arm.20
The text of the Paxton apology anticipated the language eventually included by Pennsylvanians in their Declaration of Rights, which asserted that the people had a right to '"bear arms in defense of themselves and the state." There is no evidence from the pre-Revolutionary era that Pennsylvanians were concerned about threats to the common-law right of individual self-defense. The Quaker-dominated legislature had not disarmed backcountry inhabitants, nor had it passed laws that prevented them from defending their homes against intruders. What the assembly had refused to do was enact a militia law or provide arms for frontier communities to mount a concerted collective defense, including retaliatory raids on Indian communities. The language eventually incorporated into the Pennsylvania Declaration of Rights reflected this bitter struggle over public safety, and had little to do with public concern over an individual right to keep arms for self-protection.21
Although they had dominated colonial politics for much of the previous century, Quaker influence was on the decline by the onset of the American Revolution. Many Quakers opposed independence, a choice that further weakened their position. Although the Quakers' influence in Pennsylvania politics was greatly diminished, they were able to obtain one important concession from the framers of the state constitution. As religious pacifists opposed to bearing arms, Quakers won a religious exemption that would allow them not to bear arms:
That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service when necessary, or an equivalent thereto: But no part of a mans property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives: Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay-such equivalent: Nor are the people bound by any laws, but such as they have in like manner assented to, for their common good.22
By including a right to bear arms and a right not to be forced to bear arms, the Pennsylvania Declaration of Rights struck a compromise position between the opposing demands of the backcountry residents and the Quakers.
Only after asserting the civic obligation to bear arms did the constitution then affirm:
That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace, are dangerous to liberty, they ought not to be kept up: And that the military should be kept under strict subordination, to, and governed by, the civil power.
As was invariably true in most Revolutionary-era constitutions, the right to bear arms was also set against the danger posed by standing armies, a juxtaposition that only underscored the military civic character of the right.23
While the right to bear arms was articulated as a civic right inextricably linked to the civic obligation to bear arms for public defense, the constitution did deal with the private use of arms in one other context. The Pennsylvania Constitution explicitly protected the right to hunt in a separate provision from the right to bear arms. In contrast to England, where game laws made hunting the exclusive province of the wealthy, in Pennsylvania "the inhabitants of this state shall have liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed; and in like manner to fish in all boatable waters, and others not private property." The formulation of this right implied a right of government regulation, since hunting might be limited as to time, place, and manner. Still, protecting the right of all citizens to hunt made clear an opposition to the kinds of restrictions that the English game laws had codified and that had been used to effectively disarm a significant portion of the English population.24
The Massachusetts Constitution maintained the emphasis on collective defense found in the Virginia and Pennsylvania declarations of rights, but it added one crucial new word:
The People have a right to keep and bear arms for the common defence. And as in time of peace armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in exact subordination to the civil authority and be governed by it. (emphasis added)25
The convention s inclusion of the word keep built on an assumption implicit in the state's militia statute that most citizens, apart from the poor, 'would provide their own weapons for militia duty and would therefore keep those weapons in their homes.26 In contrast to Jefferson s alternative formulation of the right to keep arms, which did not link this right to bearing arms, Massachusetts forged a tight link between the two. A single constitutional principle emerged, linking the right to keep arms with the obligation to bear them for the common defense.
One of most remarkable features of the framing and ratification of the Massachusetts Constitution was the decision to submit the draft constitution to towns for comments. The towns5 responses to the various provisions of the constitution provides a rare glimpse into popular constitutional ideas in the Founding era, including arms bearing. Although individual towns produced dozens of detailed responses to the proposed constitution and identified many flaws in the new frame of government, the clause on the right to keep and bear arms did not prompt extensive commentary. Only two western towns expressed any reservations about the wording: Both towns sought something closer to Jefferson s modified Beccarian model, which would have severed the connection between the right to keep arms and the obligation to bear them for the common defense.
A response from the town of Northampton suggested that "the people have a right to keep and bear arms as well for their own as the common defense."27 Williamsburgh, another town in western Hampshire County, echoed these protests:
1st. that we esteem it an essential privilege to keep Arms in our houses for Our Own Defense and while we Continue honest and Lawfull Subjects of Government we Ought Never to be deprived of them.
Reas. 2 That the legislature in some future period may Confine all the fire Arms to some public Magazine and thereby deprive the people of the benefit of the use of them.28
Williamsburgh sought an explicit statement of a right to keep arms for personal defense.29
The fear that the state might insist on the collective storage of arms had been voiced two years earlier when the state rejected the first proposed constitution. These apprehensions demonstrated how American thinking about the right to bear arms was powerfully influenced by a fear of British-style disarmament of the militia. The march of British Regulars on Concord to seize colonial military stores in 1775 left an indelible imprint on citizens of the commonwealth. Backcountry residents were especially anxious about ceding too much power to a distant government. For those who feared centralization of power, the state government in Boston was as much to be feared as the government of King George III had been during the Revolution. All governments were liable to become corrupt and oppressive if citizens failed to watch them with a jealous eye. Although as a practical matter Williamsburgh probably had little to fear about the dangers of centralized storage of weapons, the possibility was not completely beyond the pale. The state enjoyed enormous powers to regulate its internal police and enact laws consistent with the common good. In military matters the state's power was even greater since it could seize weapons or compel military service. It was precisely because they recognized the enormous power of the state's authority over firearms that Williamsburgh town residents sought to affirm a right to keep and bear arms in more expansive terms. Despite their protests, no other town in the commonwealth followed their lead, and the language included in the Massachusetts Constitution remained unchanged.30
A WELL-REGULATED RIGHT
The meaning of the Massachusetts Constitutions provision on keeping and bearing arms was clearly understood by contemporaries to provide explicit constitutional protection for weapons associated with militia service. The status of weapons with no connection to the militia posed a different set of issues. The scope of the right to keep or carry arms outside of the militia prompted a fascinating newspaper exchange less than a decade after Massachusetts towns had debated the merits of their constitution. One writer, adopting the Roman persona of Senex, argued that constitutional protection for the right to bear arms was limited by the purpose of the provision, which was to provide for the common defense. Following a well-established principle of legal construction and constitutional interpretation that would have been easily understood by Americans, Senex reminded his audience that in "defining this article, we ought to consider the evil intended to be remedied." In Senex's view, the right to bear arms was included in the Massachusetts Constitution as a means of preventing the disarmament of the militia. As Senex noted, "The idea, that Great Britain meant to take away their arms, was in the minds of the people." Another writer, who cloaked himself in a more popular literary style, adopting the less pompous name of Scribble-Scrabble, conceded "the people's right to keep and bear arms for a particular purpose is secured to them against any future acts of the legislature." As far as the personal right to use arms was concerned, "the legislature have a power to control it in all cases, except the one mentioned in the bill of rights, whenever they shall think the good of the whole require it." Until the legislature acted, either to regulate or prohibit the particular use of firearms, the people retained the right to use firearms for any lawful purpose. Asserting a basic principle of common law, Scribble-Scrabble informed his readers that "the other purposes for which they might have been used in a state of nature, being a natural right, and not surrendered by the constitution, the people still enjoy and must continue to do so till the legislature shall think fit to interdict." Senex and Scribble-Scrabble's interpretations of the Massachusetts Constitution were consistent with the fears expressed by Williamsburgh and Northhampton residents less than a decade earlier. While militia weapons owned for the purposes of meeting a specific legal obligation were constitutionally protected, other weapons were not. Although the scope of legislative authority over non-military weapons was considerable, it was certainly not unlimited. Laws enacted regarding firearms had to serve a legitimate public purpose and have a rational basis. Within those constraints the state was free to enact any type of regulation the legislature deemed necessary to promote public safety31
The right of the people to govern themselves and legislate their "internal police" was a bedrock principle of American constitutionalism. Pennsylvania's Declaration of Rights made this explicit when it asserted that "the people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same." While many in modern America have come to view regulation as somehow antithetical to liberty this was not how Americans in the
Revolutionary era viewed the matter. The ideal that Americans venerated was not the unrestrained liberty of the state of nature, but the ideal of well-regulated liberty. As one contemporary noted, "Well regulated liberty of individuals is the natural offspring of laws, which prudentially regulate the rights of whole communities." By contrast, "all liberty which is not regulated by law, is a delusive phantom." Outside of a well-regulated society governed by the rule of law, liberty was nothing more than licentiousness and anarchy32
The lengthy militia statutes enacted by the individual colonies and then revised by the states after they gained independence constituted the largest body of law dealing with firearms. These regulations could be quite intrusive, allowing government not only to keep track of who had firearms, but also requiring citizens to report to muster or face stiff penalties. The individual colonies used their broad police powers to regulate the non-military use of firearms in a variety of ways.
Regulations governing the storage of gunpowder were among the most common. States also prohibited the use of firearms on certain occasions and in certain locations. A good example of the breadth of the state's police powers is provided by a regulation forbidding Boston residents from storing loaded firearms in any domestic dwelling. The 1786 statute, 'An act in addition to the several Acts already made for the prudent Storage of Gun Powder within the Town of Boston," empowered the towns fire wardens to confiscate weapons and impose stiff fines for violating this law.33
The state also retained the right to disarm groups deemed to be dangerous. While the state could not pass English-style game laws that unilaterally disarmed the entire population, it could use loyalty oaths and enact discriminatory legislation to disarm particular groups in society that posed a risk to public safety. Although the language of Pennsylvania's constitutional provision on arms bearing was among the most expansive, the state also adopted one of the most stringent loyalty oaths. The Test Acts, as they were known to contemporaries, barred citizens who refused the oath from holding public office and serving on juries. These individuals were also to be disarmed, as "persons disaffected to the liberty and independence of this state."34 The acts thus stripped many but not all the essential rights of citizenship from a large segment of the population, perhaps as much as 40 percent of the citizenry. Individuals who failed to take the oath could still publish, assemble, and seek petition for redress of grievances, but they "were not full participants in the civic life of their state. Their status fell somewhere between full citizens and resident aliens. Although loyalty oaths were enacted in other states, the Pennsylvania Test Acts were not repealed until long after the treaty of Paris was signed in 1783 and formal hostilities with Britain ended. The oaths did more than address the special situation faced by the state during wartime; they reflected a more fundamental belief that citizenship was tied to a set of legal obligations and demanded a certain level of public virtue. One other type of systematic disarmament policy "was common. Laws disarming groups such as slaves, freed blacks, Indians, and those of mixed-race ancestry were common. Thus, Pennsylvania prohibited "any Negro" to "carry any Guns, Sword, Pistol, Fowling-Piece, Clubs, or other Arms or Weapons whatsoever" without "his Master's special Licence." Since blacks were ineligible to bear arms, the prohibition was phrased as a limit on carrying weapons.35
The legal difference between laws regulating civilian gun use and laws pertaining to bearing arms was an important one. The state enjoyed far greater authority over the former type of activity. A good illustration of this principle may be found in a bill introduced by the young James Madison during his time as a legislator in Virginia. In a "Bill for the Preservation of Deer," Madison proposed a stiff penalty for individuals who hunted out of season. The most interesting features of this law penalized persons who "shall bear a gun out of his inclosed ground, unless whilst performing military duty." The language of this provision provides a remarkable window into the way Madison understood the differences between bearing a gun for personal use and for the common defense. The state clearly retained the right to regulate the use of firearms and differentiated between the level of restrictions that might be placed on bearing a gun and bearing arms.36
Even in the absence of any legislation regulating the right to keep or carry firearms, there were a variety of constraints embedded in the common law. The common law also provided some modest protection for a right to keep or carry firearms for personal protection. The nature of the common law made it particularly well suited to deal with the complex problem of regulating firearm use. The genius of the common law was that it was an organic entity capable of evolution and growth. The meaning of self-defense was an excellent illustration of this dimension of the common law. The natural right of self-defense had evolved slowly into the more limited right embodied in the common law. These changes reflected the accumulated wisdom of countless judges who had struggled with the difficult task of balancing the right of self-defense with the need to protect public safety37
The right to travel armed was severely constrained under common law. The author of English Liberties, of the Free-born Subject's Inheritance, a popular English legal text reprinted in the colonies, defined an affray as a crime against the king's peace and that "constables may take away the Arms of them who ride or go armed in Terror of the People." Another influential legal text, The Conductor Generalis, the Office, Duty, and Authority of Justices of the Peace, noted that "in some case there may be an affray, where there is no actual violence; as where a man arms himself with dangerous and unusual weapons, in such a manner as will naturally cause terror to the people." Under British law armed travel was regulated, and mere possession of arms likely to provoke a public panic was also punishable. Popular guides to the law published after the Revolution continued to devote considerable space to the subject of affrays. The nature of the common law provided considerable flexibility in deciding exactly what constituted an affray. Context was crucial to making these kinds of determinations. In America, where legal restrictions on hunting were far more lax and gun ownership more common, the crime of affray was more narrowly defined than in England. A party of men hunting in season in Pennsylvania would not under most circumstances have been viewed as committing an affray, while an armed assembly riding into town might well be viewed as such and could be legally disarmed by a justice of the peace.38
SHAYS'S REBELLION
While the framers of America's first constitutions struggled to craft documents that preserved the ideals of well-regulated liberty, there were those who felt that the new state governments were themselves potential threats to liberty. In the period between the 1760s and 1780s, popular protest movements emerged in backcountry regions of North and South Carolina. As one contemporary observed, the protestors described themselves as "Regulators" because they attempted "to regulate the administration of justice in the remote settlements." Regulator movements were an expression of a species of popular constitutionalism in which the people took direct action themselves and thus bypassed the courts or the legislature. Perhaps the most dramatic action of Regulators was the closing of courts to protect debtors from creditors. The notion that the people might assemble in arms and defend their liberty posed a potential challenge to the new state governments' authority. During the Revolution, popular assemblies, including mobs, had played an important role in the movement for independence. During the Liberty Riot in 1768, citizens invoked a right of constitutional resistance. In 1786, embattled farmers in western Massachusetts sounded an alarm and mustered, asserting their right to take up arms to defend their liberty against the tyranny of a distant government that seemed unresponsive to their needs. This time that distant government was not far across the sea, but sitting in Boston. The very same logic that led Samuel Adams to invoke the fifth auxiliary right in the aftermath of the Liberty Riot was used by farmers in western Massachusetts to challenge their own state government's authority. Shays's Rebellion, the largest violent uprising in the new nations history, would become the first test of the radical potential of the militia and the right to bear arms in post-Revolutionary America.39
The western farmers' grievances were serious. Funding the war against Britain had placed a severe strain on the American economy. The individual states adopted different strategies to deal with the burden of war debt. Massachusetts adopted a tight fiscal policy, including high taxes. Farmers in the western part of the state were particularly hard-hit by these policies. As the number of farm foreclosures rose, and popular frustration mounted, events took a dramatic turn when a contingent of Revolutionary War veterans mustered themselves and marched in military array on the town of Northampton to shut down the local courts and prevent further foreclosures. Although the protestors did not have the legal authority to act as a state-sanctioned militia, their behavior imitated the rituals and organization of the militia. The insurgents, many of them armed with muskets, marched behind a fife and drum and assembled in the center of town. The judges of the court, dressed in formal judicial attire—long black robes and gray wigs—were prevented from entering the courthouse by the assembled protestors. The men who marched on the courthouse in western Massachusetts did not call themselves rebels or insurgents, but Regulators. As had been true for earlier Regulator movements in the Carolinas, the Shaysites cast themselves as champions of the "good of the commonwealth" and framed their protests in a distinctly collective idiom, invoking the metaphor of the "Body of the People." Shays and his followers claimed to be exercising "the first principles of natural self preservation." Thus, in choosing to arm themselves, the Shaysites did not invoke the right to bear arms protected by their state constitution; instead they claimed a natural right that superceded any written constitutional text. The voice of the people spoke not through written constitutional texts, but directly through popular assemblies, including the militia.40
The Regulators who took up arms against the government of Massachusetts went to extraordinary lengths to dispel the idea that they were a mob. Their actions and rhetoric self-consciously drew on symbols associated with the Revolutionary militia. Citizens were urged to emulate the minutemen and "turn out at a minute's notice." Regulators organized themselves into regiments and kept track of participants on muster rolls. The goal stated by these Regulator units was to suppress the "tyrannical government in the Massachusetts State." Regulators acted as if they were simply carrying forward the heritage of the Revolution and even adopted the practice of adorning their hats with green boughs, a symbolic gesture that had been used on ceremonial occasions by troops during the Revolutionary struggle.41
Proponents of Regulation denied that they intended to "subvert all Government, and throw all things into a State of Anarchy and confusion." The governor of the commonwealth, James Bowdoin, saw matters differently. In a proclamation condemning the actions of the Northampton insurgents, he asserted that their behavior was "fraught with the most fatal and pernicious consequences" and "must tend to subvert all law and government." In short, Bowdoin denounced the rebellion for undermining the security provided by a "well-regulated society" and threatening life, liberty, and property.42
A few days after the events in Northampton, another crowd of farmers closed the courts in Worcester. This time Governor Bowdoin took decisive action and called out the militia. Rather than follow the orders of the governor and disperse the insurgents, however, a large number of the town's militia refused to march against the protestors. Some members of the militia even joined ranks with the rebels they had been sent to quell. A similar scenario played out in Great Barrington. Once again the government dispatched the militia to liberate the court from the mob. When the militia met up with the Regulators, a member of the crowd suggested putting the matter to a vote: supporters of opening the court stood to one side of the road while those opposed crossed the highway. Nearly eight hundred of the thousand militia members who had been sent to protect the courts voted with their feet to join the rebels and keep the courts closed.43
For Shays and his supporters, the actions of those citizens who had refused to take up arms against the Regulators were a living proof of the superiority of a citizens' militia over a standing army. In contrast to professional soldiers, who would have had few scruples about opening fire on an assembly of citizens, a militia composed of the body of the people would never be party to such an act. For the Friends of Order, the supporters of government authority, the refusal of the western militia to muster against the Regulators only confirmned the weakness and inadequacy of the militia as a bulwark against anarchy. Shays's rebellion exposed a tension in American constitutional theory: was the militia an agent of government authority, or was it a popular institution that might serve as a check on government? The notion that the militia might effectively nullify an unjust law by refusing to enforce it, or in extreme situations actually take up arms against the government, were two of the most radical ideas to emerge out of the intellectual ferment of the Revolutionary era. Both of these ideas had been put into practice during Shays's Rebellion.44
Regulators defended their actions in a language that reflected a strong corporate sensibility that was itself rooted in their desire to defend their local communities against outside threat. Men did not act alone as isolated individuals, but acted in concert with one another as a public body In the view of the Shaysite Luke Day, the Regulators were literally "the body of the people assembled in arms." Shays and his followers were not radical individualists, but strongly communitarian and localist in their outlook. For backcountry radicals such as the Regulators, the militia was an expression of the locality, not a creature of the state.45
Opponents of the rebellion, Friends of Order, attacked the Regulators as insurgents, 'levellers," "bandetti," or simply "the mob." In their view, American Independence had banished the right of armed resistance against constitutional government. As one Congregational minister from western Massachusetts noted, "Our government is so constituted that publick oppressions may be soon removed without force, either by remonstrance against the measures of rulers, or by a change of the rulers themselves." The right of revolution was a natural right that individuals ceded as a prerequisite for creating political society. The only justification for taking up arms was when "rulers usurp a power oppressive to the people, and continue to support It by military force in contempt of every respectful remonstrance." Shaysites enjoyed representation and had access to the courts. Indeed, their decision to close the courts only underscored their lawlessness. Rebellion against duly constituted authority demanded a forceful response by government. "If a part of the people attempt by arms to controul or subvert the government, the rulers, who are the guardians of the constitution, have a right to call in the aid of the people to protect it." Even Samuel Adams, the firebrand of the Revolution, denounced the Regulation. In a situation in which representative institutions and courts of law were functioning, the rule of law, not arms, was the primary guarantee of life, liberty, and property.46
When the Continental Congress learned of unrest in Massachusetts, including the refusal of western militia units to quell the rebellion, they used the pretext of raising troops to combat Indians in the Northwest Territory as the justification for raising additional troops to aid Massachusetts. Eventually the state raised an army, turning to Boston s business community to underwrite the effort. The prospect of an army marching westward prompted the Regulators to make a bold decision: they moved to seize the federal arsenal at Springfield. When word of the Regulators' plan reached Boston, troops headed west to Springfield to cut them off and defend the arsenal. The better-equipped troops loyal to the government' easily routed the Regulators, and the movement collapsed.47
The leaders of the movement, Daniel Shays and Eli Parsons, fled the state. The government of Massachusetts passed the Disqualification Act and required Shaysites to take a new oath of allegiance. Those who refused to take the oath were denied the right to serve on juries, hold public office, or vote. The law also disarmed individuals. While the Disqualification Act prevented Regulators from serving on juries or possessing firearms, they were not-stripped of all their rights. The state clearly distinguished between rights associated with citizenship, civic rights such as participation in juries and bearing arms, and rights that were genuinely individual in character such as freedom of conscience or "the liberty of the press."48
In the view of Massachusetts poet, playwright, and historian Mercy Otis Warren, "the turbulent spirit" in western Massachusetts "awakened all to a full view of the necessity of concert and union in measures that might preserve their internal peace." The Boston merchant Stephen Higginson commented, "I never saw so great a change in the public mind on any occasion as has lately appeared in this state as to the expediency of increasing the powers of Congress." Beyond the borders of Massachusetts similar responses were articulated by a variety of leading political figures. No one was more shaken by the events than General George Washington. When news of the uprising reached him at Mount Vernon, he fired off letters to several of his former Continental Army aides and inquired about the "cause of all these commotions." Was the rebellion the outgrowth of "licentiousness," or ~was it instigated by "British-influence disseminated by the Tories," or was it possible that this tumult sprang from some "real grievances"? Washington's alarm reflected a genuine sense of fear about America's future. History taught that all republics were fragile and could be destroyed by popular licentiousness as well as by conspiracies hatched by corrupt leaders. To steer a course between the threats of anarchy and tyranny was no easy matter. Decisive action was necessary to avert the contagion from spreading. In a letter to Henry Knox, Washington worried that "there are combustibles in every state, which a spark might set fire to."49
While in general there was little support for the rebels among the nation's elite, there was one notable exception, Thomas Jefferson. In a letter to his friend James Madison, Jefferson offered his own assessment of the "the late troubles" in Massachusetts. "I hold it," Jefferson wrote, that "a little rebellion now and then is a good thing." Jefferson's response to Shays's Rebellion, like his rejected proposal on the right to keep arms, demonstrated again that on most constitutional matters he stood well outside the mainstream in Revolutionary America. Yet, his ideas about an individual right to have arms tapped into a strain in American constitutional thought that would gain strength, not (diminish, in the coming decades.50
Despite the quick collapse of Shays's Rebellion, the Regulator movement did have an important impact on American constitutional development. It provided additional impetus for a growing movement to reform the Articles of Confederation, America's first constitution. Delegates from each of the states were dispatched to Philadelphia to attend a constitutional convention. The problem of military reform would be critical to their deliberations. Providing some means to coordinate the individual state militias under a centralized authority was deemed essential to protect the nation from internal and external threats. The problem was how to accomplish this goal without undermining the power of the states and alarming a population that was still fearful of standing armies and devoted to the idea of state control of the militia.
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TO BE CONTINUED
