Arms and the man: What did the right to "keep" arms mean in the early republic?

Law and History Review

Volumn 25, Issue 1, 2007, Pages 177-184

  Konig, David Thomas ^a  

^a WASHINGTON UNIVERSITY SCHOOL OF LAW   (United States)

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[No Author keywords available]

Indexed keywords

EID: 60950509281     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0738248000001097     Document Type: Review

References (27)

1. "Arma virumque cano" ("I sing of arms and the man"), Virgil, Aeneid, line 1
2. 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): 139-40
3. citing Robert A. Gross, The Minutemen and Their World (New York: Hill and Wang, 1976), 126
4. Churchill, "Gun Regulation," 142
5. Gross, Minutemen, 126
6. The commonplace distinction between a state of nature and civil society is another context that we cannot ignore despite Churchill's argument that the militiaman's statement asserted "a right to keep arms." Compare Locke's distinction between a state of nature and that of political society: in the former, "everyone in that state being both Judge and Executioner of the Law of Nature, men being partial to themselves, Passion and Revenge is very apt to carry them too far, and with too much heat, in their own cases; as well as negligence, and unconcernedness, to make them too remiss, in other mens." John Locke, The Second Treatise of Government. An Essay Concerning the True Original, Extent, and End of Civil Government, sec. 125, in Two Treatises of Government, ed. Peter Laslett (New York: Cambridge University Press, 1963), 396
7. Thomas Simes, The Military Guide for Young Officers (Philadelphia, 1776)
8. cited by Allen French, The Day of Concord and Lexington (Boston: Little, Brown, 1925), 197
9. "Gun Regulation in Early America: Taking Another Look at the Legal Context of the Second Amendment" (10 September 2003), comments for which I am acknowledged in the present article
10. An Act for the Regulation of the Militia of the Commonwealth of Pennsylvania" (1807), ch. MMDCCCXLII, sees. 15, 37
11. Jack N. Rakove, "Words, Deeds, and Guns: Arming America and the Second Amendment," William and Mary Quarterly 59 (2002): 208
12. An Act for the Regulation of the Militia of the Commonwealth of Pennsylvania" (1807), chap. MMDCCCXLII, sec. 38
13. John K. Mahon, The American Militia: Decade of Decision, 1789-1800 (Gainesville: University of Florida Press, 1960), 47-48
14. Report to Congress, 1794, Annals of Congress, House of Representatives, 11th Congress, 2nd Session, 70. The report also noted that North Carolina had the same procedure. Connecticut did the same in 1782, specifying that "all Arms and Accoutrements thus provided, shall be the property of such Town" paying for them. Acts and Laws (1782), p. 592
15. Mahon, American Militia, 42
16. 2nd Congress, 2nd Session, ch. 33 (1792), sec. 11
17. See also Marcus Cunliffe, Soldiers and Civilians: The Martial Spirit in America, 1775-1865 (Boston: Little, Brown, 1968)
18. William H. Riker, Soldiers of the States: The Role of the National Guard in American Democracy (Washington, D.C.: Public Affairs, 1957), 28-30
19. 2nd Congress, 2nd Session, ch. 33 (1792)
20. 5th Congress, 2nd Session, ch. 66 (1798)
21. Congress acted again in 1808. 10th Congress, Session 1, chap. 55 (1808)
22. Vermont and South Carolina had to send purchasing agents to Europe in search of guns. Cunliffe, Soldiers and Civilians, 185. The Connecticut Journal observed that Virginia had stored arms in its own armory "because it was proper for the state of Virginia to keep in her possession the means of arming the militia, rather than depend for her supply on contracts which the U.S. might stop." Virginia had begun appropriating funds for its militia in 1797. Connecticut Journal, 18 February 1817, 2
23. "Col. John Wilkins to Col. Clement Biddle," Pittsburgh, 21 December 1792, Pennsylvania Archives, ser. 2, vol. 4 (1876), 742
24. W. A. Newman Dorland, "The Second Troop Philadelphia City Cavalry," Pennsylvania Magazine of History and Biography 45 ( 1921 ): 371
25. Rakove, "Words, Deeds, and Guns," 208
26. Annals of Congress, 11th Congress, 2nd Session (March 1810), 1567
27. Bacon's speech of 5 December 1808 was published in The Pittsfield Sun; or, Republican Monitor, 9 January 1809