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

Volumn 25, Issue 1, 2007, Pages 139-174

  Churchill, Robert H ^a  

^a UNIVERSITY OF HARTFORD   (United States)

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[No Author keywords available]

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EID: 60950661773     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0738248000001085     Document Type: Review

References (229)

1. On the confrontation between Mrs. Barrett and the militiaman, see Robert A. Gross, The Minutemen and Their World (New York: Hill and Wang, 1976), 126
2. Sanford Levinson, "The Embarrassing Second Amendment," Yale Law Journal 99 (1989): 637-59
3. See the discussions of recent scholarship in United States v. Emerson, 270 F.3d 203 (2001)
4. and Sylveira v. Lockyer, 312 F.3d 1052 (2002)
5. For individual rights interpretations, see Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (Cambridge: Harvard University Press, 1994)
6. Robert J. Cottrol, Gun Control and the Constitution: Sources and Explorations on the Second Amendment (New York: Garland Publishing, 1994)
7. Stephen Halbrook, That Every Man Be Armed (Albuquerque: University of New Mexico Press, 1984)
8. Don B. Kates, "Handgun Prohibition and the Original Meaning of the Second Amendment," Michigan Law Review 82 (1983): 204-73
9. and the contributions to the special Second Amendment issue of the Tennessee Law Review 62 (Spring 1995)
10. For collective rights and statist interpretations, see Garry Wills, "To Keep and Bear Arms," New York Review of Books 42 (1995): 62-73
11. Saul Cornell, "Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory," Constitutional Commentary 16 (1999): 221-45
12. Carl T. Bogus, "The Hidden History of the Second Amendment," University of California at Davis Law Review 31 (1997): 309-408
13. and the contributions of Michael Bellesiles, Jack Rakove, and Paul Finkelman to the "Symposium on the Second Amendment," Chicago-Kent Law Review 76 (2000)
14. For recent attempts to create a new paradigm for the interpretation of the Second Amendment, see Saul Cornell, "Don't Know Much About History: The Current Crisis in Second Amendment Scholarship," Northern Kentucky University Law Review 29 (2002): 657-81
15. H. Richard Uviller and William G. Merkel, The Militia and the Right to Arms, or, How the Second Amendment Fell Silent (Durham: Duke University Press, 2002)
16. and David Thomas Konig, "The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of 'the Right of the People to Keep and Bear Arms,'" Law and History Review 22 (2004): 119-59
17. Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828 (Chapel Hill: University of North Carolina Press, 1999), 207-10
18. and David Thomas Konig, "The Persistence of Resistance: Civic Rights, Natural Rights, and Property Rights in the Historical Debate over the 'Right of the People to Keep and Bear Arms,'" Symposium: The Second Amendment and the Future of Gun Control, Fordham Law Review 73 (2004): 539-47
19. Malcolm, To Keep and Bear Arms
20. Bellesiles, "Gun Laws in Early America: The Regulation of Firearms Ownership, 1607-1794,"
21. Law and History Review 16 ( 1998): 567-89
22. and Cornell, "Commonplace or Anachronism."
23. For a recent contribution, see Saul Cornell and Nathan DeDino, "A Well Regulated Right: The Early American Origins of Gun Control," Symposium: The Second Amendment and the Future of Gun Control, Fordham Law Review 73 (2004): 487-528
24. Bellesiles, "Gun Laws," 585-86
25. Cornell and DeDino, "Well Regulated Right," 500-502. Malcolm asserts that the right to keep and bear arms was recognized in England and America as an individual right, but also discusses a variety of regulatory legislation on both sides of the Atlantic
26. Though they take markedly different stances on the meaning of the Second Amendment and the content of English legal precedent, Malcolm, Bellesiles, and Konig all conclude that American law conformed to English precedent. See Malcolm, To Keep and Bear Arms, chap. 8
27. Bellesiles, Arming America: The Origins of a National Gun Culture (New York: Knopf, 2000), chap. 1
28. and Konig, "Missing Transatlantic Context," 153-59
29. For the impact of this conclusion on Second Amendment scholarship, see the contributions of Robert J. Cottrol, Gregg Carter, and Robert Spitzer to "Gun Laws and Policies," Focus on Law Studies 18 (Spring 2003): 1-20
30. Saul Cornell, "Commonplace or Anachronism," 228-31
31. Saul Cornell, "To Keep and Bear Arms," in Whose Right to Arms Did the Second Amendment Protect?ed. Saul Cornell (New York: Bedford/St. Martin's, 2000), 13
32. Cornell, "Don't Know Much About History," 671
33. and Cornell, "Beyond the Myth of Consensus: The Struggle to Define the Right to Bear Arms in the Early Republic," in Beyond the Founders: New Approaches to the Political History of the Early American Republic, ed. Jeffrey L. Pasley et al. (Chapel Hill: University of North Carolina Press, 2004), 251-73, at 256 and 259-60
34. As noted below, I have included in this survey comprehensive published collections of individual state laws, such as Hening's Statutes at Large, where they are available. For states without such collections, I consulted two microform collections. For the years 1775-1815, I surveyed the series of state session laws published on microfilm as part of the Records of the States of the United States of America (Washington, D.C., 1949)
35. For the colonial period through 1775, I consulted the microfiche edition of Colonial Session Laws (Buffalo: William S. Hein & Co., 1987). In the notes below, laws drawn from these two collections are identified by title, year, and state. Finally, I also surveyed John D. Cushing's volumes of the earliest printed laws of the thirteen colonies
36. Tench Coxe, "A Pennsylvanian, No. 3," Pennsylvania Gazette, February 20, 1788
37. On the English Militia, see Lois Schwoerer, No Standing Annies: The Antianny Ideology in Seventeenth-Century England (Baltimore: Johns Hopkins University Press, 1974), 14-15
38. A. Hassell Smith, "Militia Rates and Militia Statutes, 1558-1663," in The English Commonwealth, 1547-1640, ed. Peter Clark et al. (Leicester, U.K.: Leicester University Press: 1979): 93-110
39. and Ann J. King, ed., Muster Books for North and East Hertfordshire, 1580-1605 (Hertfordshire Record Society, 1906), 50-82 and 88-96
40. and "An Act for making the Militia in that part of Great Britain called England more useful," 1 George I, Stat. 2, c.14 (1714)
41. "An act for the better ordering of the militia forces in the several counties of that part of Great Britain called England," 30 George II, c. 25 (1757)
42. For colonial militia statutes mandating universal militia training, see The General Laws and Liberties of Connecticut Colonie (1672), 49-51
43. "An Act for Regulating the Militia," 1693
44. Massachusetts Session Laws; "An Act for Regulating the Militia," 1717
45. New Hampshire Session Laws; "An Act, Regulating the Militia in this Colony," 1718
46. Rhode Island Session Laws; "The Duke of York's Laws, 1665-75
47. " John D. Cushing, ed., The Earliest Printed Laws of New York, 1665-1693 (Wilmington: Glazier, 1978), 153
48. "An Act for Regulating the Militia of the Colony of New York," 1755, Charles Z. Lincoln et al., eds., Colonial Laws of New York (Albany: James B. Lyon, 1894), 3:1051
49. "An Act for the Settling the Militia in this Province," 1704, Bernard Bush, ed., Laws of the Royal Colony of New Jersey, 1703-1745 (Trenton: New Jersey State Library, 1977), 2:15
50. "An Act for Establishing a Militia within this Government," 1742
51. Delaware Session Laws; "An Act for the Better Regulating the Militia of this Government," 1746
52. North Carolina Session Laws; "An Act for the Better Settling and Regulating the Militia, and Appointing Look Outs," 1703
53. David J. McCord, ed., The Statutes at Large of South Carolina (Columbia: A. S. Johnston, 1841), 9:617
54. and "An Act for the Better Ordering the Militia of this Province," 1765, Georgia Session Laws
55. As the eighteenth century progressed, different colonies began to exempt their oldest and youngest men from the obligation to train. Still, the vast majority of men in colonial society participated in training for the bulk of their adult lives. For Rhode Island, see "An Act, Regulating the Militia in this Colony," 1718, Rhode Island Session Laws
56. Pennsylvania passed a voluntary militia law during the French and Indian War. See "An Act for the Better Ordering and Regulating such as are willing and desirous to be united for Military Purposes within this province," 1755, James T. Mitchell et al., eds., The Statutes at Large of Pennsylvania from 1682 to 1801 (Harrisburg: William Stanley Ray, 1896), 5:197
57. Pennsylvania's first universal militia statute came in 1777. See "An Act to Regulate the Militia of the Commonwealth of Pennsylvania," 1777
58. "An Act for the ordering and regulating the Militia of this Province for the better defense and security thereof," 1704
59. Maryland Session Laws. Maryland repealed this exclusion in 1777. See "An Act to regulate the militia," 1777, Maryland Session Laws
60. See the Middlesex County, Virginia militia list, William Armstrong Crozier, ed., Virginia Colonial Militia, 1651-1776 (New York: Genealogical Association, 1905), 98
61. For Virginia's first universal militia statute, see "An Act for settling the Militia," 1705
62. William W. Hening, ed., The Statutes at Large, Being a Collection of all the Laws of Virginia (Richmond: Franklin Press, 1809-1823), 3:335
63. For comparison, see, in addition to the above cited English statutes, "An Act to make the Militia of this Kingdom more useful," 2 George I, c. 9 (Ireland, 1715)
64. The Statutes at Large passed in the Parliaments of Ireland (Dublin: George Grierson, 1786), 4:333
65. and "An Act for the Settlement of the Militia of this Island," 1702, Acts of Assembly Passed in the Island of Barbadoes, from 1648 to 1718 (London: John Baskett, 1721), 175
66. For a Caribbean statute that does appear to mandate universal militia service, see "An Act for settling the Militia," 1681, Acts of Assembly Passed in the Island of Jamaica, from 1681 to 1737 (London: John Baskett, 1738), 29
67. In the census of 1755, the colony reported 5265 "soldiers" and 2997 additional ablebodied men on the alarm list out of 9177 white men. The trained band thus incorporated 64 percent of able-bodied men from sixteen to sixty, even though in Rhode Island men were exempt from training after the age of fifty. Colonial officials estimated that one-eighth of the white male population of the colony was Quaker. See "Account of the People in the Colony of Rhode Island, Whites and Blacks, with the quantity of Arms and Ammunition in the hands of Private Persons," December 24, 1755, Board of Trade Journals, 1675-1782, Volume 64, Historical Society of Pennsylvania
68. For Bellesiles' original analysis and more recent work on gun ownership and rates of militia armament that refute his claim that gun ownership was rare in early America, see Bellesiles, "The Origin of Gun Culture in the United States, 1760-1865," Journal of American History 83 (1996): 424-53
69. James Lindgren and Justin Heather, "Counting Guns in Early America," William and Mary Law Review 43 (2002): 1777-1842
70. and Robert H. Churchill, "Gun Ownership in Early America: A Survey of Manuscript Militia Returns," William and Mary Quarterly, 3d ser., 60 (2003): 615-42
71. For additional findings on the presence of guns in colonial probate inventories, see Kevin Sweeny, "Guns along the River: The Possession and Use of Firearms in Western Massachusetts, 1660-1800," paper presented at the 2004 annual meeting of the Organization of American Historians (cited with permission of the author)
72. Amy Cox, "Evaluating the Place of Guns in Early America," paper presented at the 2004 annual meeting of the Organization of American Historians (cited with permission of the author)
73. Gloria Main, "Many Things Forgotten: The Use of Probate Records in Arming America," William and Mary Quarterly, 3d ser., 59 (2002): 211-16
74. and Judith A. McGaw, "'So Much Depends upon a Red Wheel Barrow': Agricultural Tool Ownership in the Eighteenth-Century MidAtlantic," in Early American Technology: Making and Doing Things from the Colonial Era to 1850, ed. Judith A. McGaw (Chapel Hill: University of North Carolina Press, 1994), 332. Kevin Sweeny finds a sharp decrease in gun ownership in Hampshire County, Massachusetts during and after the American Revolution. That decline does not appear in contemporary militia returns. There is an abundance of anecdotal evidence of local shortages of arms throughout the period under consideration. Nevertheless, the available statistical evidence strongly points to widespread gun ownership among free adult white men
75. "A Supplementary Act to the Act entituled, an Act for better settling and regulating the Militia of this Colony of New Jersey," 1757, Bush, Laws of the Royal Colony, 3:503
76. "An Act for the better regulating the Militia of this Province," 1747, McCord, Statutes at Large, 9:645
77. "An Act for the Better Ordering the Militia of this Province," 1765, Georgia Session Laws
78. New Haven's Settling in New England and some Laws for Government (London, 1656), 64
79. "Bill for the Settlement of the Militia," 1684, Lincoln, Laws of Colonial New York, 1:161
80. and "An Act for Amending and further continuing the act for the better regulating and disciplining the Militia," 1762, Hening, Statutes at Large, 7:534
81. "An Act concerning Servants and Slaves," 1741, North Carolina Session Laws
82. "An Act for Disarming Papists and Reputed Papists, refusing to take the oaths to the Government," (1756), Hening, Statutes at Large, 7:35
83. and "Form of an Association into which Numbers are daily entering, for the Defence of this City and Province - With Remarks on each Paragraph," Pennsylvania Gazette, December 13, 1747
84. For post-colonial examples of this usage, see "An Act for the regulating, training, and arraying of the Militia," 1781, New Jersey Session Laws
85. "An Act for forming, regulating, and conducting the Military Force of this State," 1782, Connecticut Session Laws
86. "An act for amending the several laws for regulating and disciplining the militia and guarding against invasions and insurrections," 1784, Hening, Statutes at Large, 11:476
87. "An Act for regulating and governing the Militia of the Commonwealth of Massachusetts," 1793, Massachusetts Session Laws
88. "An act for regulating and governing the Militia of this state," 1797, Vermont Session Laws
89. and the Speeches of John Rhea and Ezekiel Bacon on the bill for arming the militia, December 1807, Annals of Congress: The Debates and Proceedings in the Congress of the United States, 42 vols. (Washington, D.C.: Gales and Seaton, 1834-1856), 17:1036 and 1042
90. "Declaration of the Inhabitants of Queen's County, New York," December 6, 1775, Calendar of Historical Manuscripts Relating to the War of the Revolution in the Office of the Secretary of State (Albany: Weed, Parsons, and Company, 1868), 1:200-201
91. and Lois Schwoerer, "To Hold and Bear Arms: The English Perspective," Chicago-Kent Law Review 76 (2000): 27-60
92. Bellesiles, "Gun Laws," 586
93. For examples of the close linkage between impressments, martial law, and the suspension of habeas corpus, see "An Act for giving certain powers to the governor and council, and for the punishing of those who shall oppose the execution of the laws," 1781, Hening, Statutes at Large, 10:413
94. "An Act to indemnify such Persons as have acted in Defense of the State, and for the Preservation of Peace during the late War, from vexatious Suits and Prosecution," 1783, North Carolina Session Laws
95. and "An Act for settling the Militia," 1681, Acts of Assembly in Jamaica, 31
96. A Declaration and Ordinance of the Lords and Commons Assembled in Parliament, for the Associating of the Several Counties of Norfolk, Suffolk, Essex, Cambridge, Isle of Ely, Hertford, and County of the City of Norwich (1642)
97. A Declaration and Ordinance of the Lords and Commons assembled in Parliament for the Better Securing and Settling of the Peace of the County of Kent (1643)
98. "An Act for Ordering the Forces in the Several Counties of this Kingdom," 13 & 14 Charles I, c. 3 (1662)
99. and "An Act for the Better Ordering of the Militia Forces in the Several Counties of that part of Great Britain called England," 30 George II, c. 25 (1757)
100. "Several Laws and Orders made at the General Court," 1675, The Colonial Laws of Massachusetts (Littleton, Colo.: Fred B. Rothman and Co., 1995), 288
101. and "An Act Restrayning the Impresse of Tymber, etc.," 1677, Hening, Statutes at Large, 2:415
102. "An Act for the Better Supply of the Country with arms and ammunition," 1684, Hening, Statutes at Large, 3:13
103. For the reaction to impressments in Massachusetts, see Nathanael Greene to Samuel Ward, Sr., December 31, 1775, Richard K. Showman, ed., Papers of General Nathanael Greene, 10 vols. (Chapel Hill: University of North Carolina Press [for the Rhode Island Historical Society], 1976-1996), 1:173
104. and George Washington to the Massachusetts General Court, January 13, 1776, Philander D. Chase et al., eds., Papers of George Washington, Revolutionary War Series, 9 vols, to date (Charlottesville: University of Virginia Press, 1985-1998), 2:77
105. For later resistance in Virginia, see Colonel Richard Elliot to Governor Jefferson, November 7, 1780, Calendar of Virginia State Papers (Richmond: James E. Goode, 1881), 1:385
106. "An Act for Settling the Militia," 1705, Hening, Statutes at Large, 3:335
107. and "An Act for the Ordering and Regulating the Militia of this Province for the Better Defense and Security Thereof," 1704, Maryland Session Laws
108. For the Virginia law governing the impressments of other types of property and the persons of artisans, see "An Act for reducing the several acts and for making provision against invasions and insurrections into one act," 1757, Hening, Statutes at Large, 7:106
109. On the decision against impressments in Massachusetts, compare the resolutions of the Massachusetts Provincial Congress on June 15 and 17, 1775, in William Lincoln, ed., The Journals of Each Provincial Congress of Massachusetts (1838), 336 and 350
110. For Connecticut and New York, see "An Act for Assembling, Equipping, etc., a Number of the Inhabitants of this Colony for the Special Defense and Safety thereof," April, 1775, J. H. Turnbull et al., eds., The Public Records of the Colony of Connecticut (Hartford: Brown and Parsons, 1850-90), 14:417
111. and the order of the New York Provincial Council, May 21, 1776, Berthold Fernow, ed., New York in the Revolution (Albany: Weed, Parsons and Co., 1887), 1:103
112. Order of the New York Provincial Council, August 10, 1776, Fernow, New York in the Revolution, 1:122
113. "An Act for Raising and Equipping a Body of Minutemen," May, 1776, Turnbull, The Public Records of the Colony of Connecticut, 15:290
114. and Order of the Pennsylvania Council of Safety, Pennsylvania Gazette, November 27, 1776. Pennsylvania authorized the practice again during a 1781 invasion scare that prompted the legislature to prepare to evacuate the entire city of Philadelphia
115. See "An Act to Make Effectual Provision for the Defense of this State," 1781, Mitchell, Statutes at Large, 10:361
116. For the tight limits on impressment in Virginia, see "An Act for Providing Against Invasions and Insurrections," 1777, Hening, Statutes at Large, 9:291
117. Rhode Island authorized the impressment of arms for the fitting out of privateers in its colonial militia laws. There is no mention of the practice in the state's post-1793 militia laws. Because the state's revolutionary laws are not published, I cannot pinpoint the end of the practice precisely. See "An Act, Regulating the Militia in this Colony," 1718, Rhode Island Session Laws
118. and "An Act to Organize the Militia of this State," 1794, ibid
119. For the legislation that first dropped the authority to impress arms in New Jersey, Virginia, and North Carolina, see "An Act for the Regulating, Training, and Arraying of the Militia, and for Providing more effectually for the Defense and Security of the State," 1781, New Jersey Session Laws
120. and "An Act for Establishing a Militia in this State," 1786, North Carolina Session Laws
121. This conclusion is based on my review of the Massachusetts session laws and legislative resolutions, 1775-1815, New York Session Laws, 1775-1815, Pennsylvania Session Laws, 1775-1815, and Connecticut Session Laws, 1780-1815 contained in the Records of the States of the United States; Hugh Hastings, ed., The Public Papers of Daniel D. Tompkins, Governor of New York, 1807-1817 (Albany: J. B. Lyon, 1902)
122. and The Public Records of the State of Connecticut, 17 vols. (Hartford: Case, Lockwood, and Brainard, 1896-), vols. 1-17(1776-1815)
123. Georgia was unusual in that it did not make a full revision of its militia laws after the passage of the federal militia act of 1792. Instead, the Georgia Militia Act of 1793 is a partial amendment of existing law and does not mention impressment. Only when making a full revision in 1803 did Georgia drop arms from the list of items liable to impressment. See "An Act to Revise, Amend, and Consolidate the Several Militia Laws of this State, and to adapt the Same to the Acts of Congress of the United States," 1803, Georgia Session Laws. South Carolina inserted the impressment of arms into its militia law for the first time in 1794 and did not make another full revision of its militia laws until the 1830s
124. See "An Act to Organize the Militia throughout the State of South Carolina in Conformity with the Act of Congress," 1794, South Carolina Session Laws
125. Smith v. Ishenhour, 43 Tenn. 214 (1866), at 217
126. Wiliam J. Novak, "Salus Populi: The Roots of Regulation in America, 1787-1873" (Ph.D. dissertation, Brandeis University, 1992)
127. See also Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996)
128. Tench Coxe, A Freeman No. 2, Documentary History of the Ratification of the Constitution, 18 vols, to date (Madison: Wisconsin State Historical Society, 1976-2000), 15:508-11
129. and "An Act for the Better Securing the Government by Disarming Papists and reputed Papists," 1 William and Mary, c. 15 (1688)
130. The latter act ordered justices of the peace to disarm all those who refused the oath prescribed in "An Act for the more effectual Preserving the Kings Person and Government," 30 Charles II, stat. 2, c. 1 (1677). That Act required members of Parliament to repudiate the doctrine of transubstantiation, the mass, and the cult of Mary
131. and Edmund S. Morgan, American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York: W. W. Norton, 1975), 316-37 and 363-87
132. Cornell, "To Keep and Bear Arms," 13
133. and Cornell, "Myth of Consensus," 256-60. Jack Rakove, citing Cornell, has asserted that the power to restrict gun ownership lay within the states' "conventional police powers." Uviller and Merkel, in turn, cited Rakove in support of the same proposition. Paul Finkleman cited Bellesiles to the effect that "every state had gun control legislation on its books." Finally, most recently, David Konig has concluded that "gun ownership would not be considered any less a matter of law left to the states to regulate as they saw fit" than the regulation of any other property. See Rakove, "The Second Amendment: The Highest Stage of Originalism," Chicago-Kent Law Review 76 (2000): 103-66, at 127 and 135
134. Uviller and Merkel, The Militia and the Right to Arms, 80
135. Finkelman, "The Second Amendment in Historical Perspective," Chicago-Kent Law Review 76 (2000): 211
136. and Konig, "Missing Transatlantic Context," 143
137. See 1 George I, stat. 2, c. 13 (1714)
138. and "An Act for Disarming Papists and Reputed Papists, refusing to take the oaths to the Government," (1756), Hening, Statutes at Large, 7:35
139. In 1998, Michael Bellesiles claimed that in 1756 the "Maryland Assembly" passed a "law expropriating all the arms and ammunition of Catholics." The assembly did pass a bill to that effect, one that would have disarmed Catholics on purely religious grounds. The bill died at the end of the session, however, and was never enacted into law. The bill, clearly identified as such, was entered into the Assembly Journal as "An Act to Prevent the Growth of Popery within this Province." See Bellesiles, "Gun Laws," 574; and William H. Browne et al., eds., Archives of Maryland (Baltimore: Maryland Historical Society, 1883-1972), 52:441. The editor's introduction to that volume describes the bill's passage in the assembly and eventual demise. There is nothing in the text of 1 William and Mary, c. 15, the 1688 parliamentary act disarming Catholics on the basis of faith, to indicate that it was in force in colonies. When North and South Carolina passed legislation listing the acts of Parliament in force within those colonies, 1 William and Mary, c. 15 was not among the listed acts. One of the first Justice of the Peace manuals published in the colonies, George Webb's The Office and Authority of a Justice of the Peace (1139), cited an English statute, 1 William and Mary, c. 26, as providing for the disarming of "Papists," but the cited statute has no such provision. Webb went on to note that Virginia law prohibited the presence of Catholics in the colony and thus suggested that this parliamentary legislation had no application in the colony. In 1722, New Jersey passed "An Act for the Security of his Majesty's Government of New Jersey," which established an oath of allegiance that included a declaration against transubstantiation. The act further provided that those refusing the oath would "forfeit and be proceeded against, as a popish recusant by all or any the laws of England should forfeit and be proceeded against." But the act did not explain what those penalties were, and the only parliamentary statute cited was 12 William III, c. 2, which does not touch the issue of disarmament. Given the tangle of English law imposing disabilities on Catholics, it is not clear that colonial legislatures were fully informed of English law in the matter, a confusion illustrated by Webb's incorrect citation
140. See "An Act to put in Force in this Province, the Several Statutes of the Kingdom of England, or South Britain, therein particularly mentioned," 1746, John D. Cushing, ed., The Earliest Printed Laws of North Carolina, 1669-1751 (Wilmington: Michael Glazier, 1977), 1:293
141. "An act to put in Force in this Province the several Statutes of the Kingdom of England or South Britain, therein particularly mentioned," 1712, John D. Cushing, ed., The Earliest Printed Laws of South Carolina, 1692-1734 (Wilmington: Michael Glazier, 1978), 1:236
142. Webb, Office and Authority, 133; and "An Act for the Security of His Majesty's Government in New Jersey," 1722
143. Bush, Laws of the Royal Colony, 2:284. In sum, there is no clear evidence that 1 William and Mary, c.15 was in force in the colonies
144. Cornell, "Commonplace or Anachronism," 228
145. "Don't Know Much About History," 672
146. and "Myth of Consensus," 259
147. On March 14, 1776 the Continental Congress recommended that provincial legislatures disarm all persons "who are notoriously disaffected to the cause of America, or who have not associated, and shall refuse to associate, to defend, by arms, these United Colonies." Journals of the Continental Congress, 1774-1789 (Washington, D.C.: Government Printing Office, 1906), 4:201-5
148. It is pertinent to note that Congress acted in response to a report by General Arthur Lee urging Congress to vigorously exercise its emergency military powers to provide for the defense of the city of New York. For examples of states that acted on this recommendation, see "Resolves of Assembly, Agreed to April 6, 1776," Mitchell, Statutes at Large, 8:559
149. and "An Act for Executing in the Colony of Massachusetts, in New England, one Resolve of the American Congress, dated March 14, 1776," 1776, Massachusetts Session Laws. The law from the winter of 1775-1776 that comes closest to establishing a political litmus test for gun ownership was a December 1775 Connecticut statute that ordered the disarmament of any person defaming the acts of Congress or the state assembly. See "An Act for Restraining and Punishing Persons Inimical to the Liberties of the United Colonies," 1775, Connecticut Session Laws
150. "An Act Obliging the Male White Inhabitants of this State to Give Assurances of Allegiance to the Same and for other Purposes therein Mentioned," 1777, Mitchell, Statutes at Large, 9:111
151. and "An Act for Securing to this Commonwealth the Fidelity and Allegiance of the Inhabitants thereof, and for Admitting Certain Persons to the rights of Citizenship," 1786, Pennsylvania Session Laws
152. For Maryland, see "An Act for the Better Security of the Government," 1777; "An Act to prevent and suppress insurrections," 1778
153. and "An Act to raise two battalions of militia for reinforcing the Continental Army," 1781, Maryland Session Laws
154. For North Carolina, see "An Act for Directing the Method of Appointing Jurors," 1777, North Carolina Session Laws
155. For Virginia, see "An Act to Oblige the Free Male Inhabitants of this State above a certain age to give Assurance of Allegiance to the same, and for other purposes," 1777, Hening, Statutes at Large, 9:281
156. Free blacks had been required to attend militia muster unarmed under Virginia's pre-Revolutionary militia laws. See "An Act for the Better Regulation of the Militia," 1738, Hening, 5:17
157. There are two partial exceptions to this statement: On July 19, 1776, Pennsylvania ordered the blanket disarmament of non-associators, dropping its previous distinction between the disaffected and well affected. This order was repealed in 1778. Also, New Jersey passed a law authorizing the Council of Safety to tender an oath of allegiance to those persons suspected of being "dangerous or disaffected" and to try, imprison, or exile those who refused the oath. A separate provision authorized the council to disarm those "they shall judge disaffected." It is not clear whether this latter provision referred only to those who had refused the oath and on whom the council had passed judgment, or to all persons coming under suspicion. See "An Ordinance Respecting the Arms of Non-Associators," 1776, Mitchell, ed., Statutes at Large, 9:11
158. and "An Act for Constituting a Council of Safety," 1777, New Jersey Session Laws
159. Such a conclusion must of course remain tentative. My survey of the session laws of the thirteen colonies and Vermont through 1815, while thorough, can never be sufficient to prove an absolute negative. Nevertheless, in searching the extant printed session laws of the first fourteen states year by year for the period 1607 to 1815,1 have not identified a single instance in which these jurisdictions exercised a police power to prohibit gun ownership by members of the body politic. Nor, for the reasons I have discussed above, did Michael Bellesiles or Saul Cornell accurately identify such an exercise in their analyses of the subject
160. For an example of attempts to control the use of guns on muster day, see "An Act for regulating and governing the Militia of the Commonwealth of Massachusetts," 1793, Massachusetts Session Laws. The federal militia act of 1792 mandated that state militia officers make returns of the state of the arms of their units, and that state adjutants general collate and submit statewide returns to the Secretary of War. The act codified what had been a haphazard practice during the Revolution. See "An Act more effectually to provide for the National Defense, by establishing an Uniform Militia throughout the United States," 1792, in Laws of the United States of America (Philadelphia: Richard Folwell, 1796), 2:92
161. For examples of colonial legislation authorizing door-to-door surveys of arms, see the order of the Governor and Council, March 28, 1667, in John Russell Bartlett, ed., Records of the Colony of Rhode Island and Providence Plantations (Providence: A. Crawford Greene and Brother, 1857), 2:196
162. and "An Act for the regulating, training, and arraying of the Militia," 1781, New Jersey Session Laws. I have found evidence that house-to-house gun censuses were actually conducted in New Hampshire in 1775 and Rhode Island in 1757 and 1775
163. "An Act in Addition to the Act for regulating the Militia," 1718, New Hampshire Session Laws
164. Acts and Laws of his Majesties Colony of Connecticut in New England (1702), 5
165. "An Act for Regulating the Watch in the Town of Savannah," 1759, Allen D. Candler, The Colonial Records of the State of Georgia (Atlanta: The Franklin Printing and Publ. Co., 1904-16), 18:295
166. "An Act to prevent the pernicious Practice of hunting with a Gun in the Night by Fire Light," 1774, North Carolina Session Laws
167. "An Act to Prevent firing of guns and other firearms within this State, on certain days therein mentioned," 1785, Laws of the State of New York (Albany: Weed, Parsons, and Co., 1886), 2:152
168. "An Act to suppress the disorderly practice of firing guns, etc.," 1774, Mitchell, Statutes at Large, 8:410
169. "An Act for Preventing Mischief being done in the town of Newport, or in any other town in this Government," 1731, Rhode Island Session Laws; 6 Commonwealth, c. 12 (Virginia, 1655-56), Hening, Statutes at Large, 1:401
170. and 18 Charles I, c. 35 (Virginia, 1642), ibid., 1:261
171. "An Act for preventing accidents that may happen by fire," 1721, Mitchell, Statutes at Large, 5:252
172. "An Act to prevent Hunting with Firearms in the City of New York, and the liberties thereof," 1763, Lincoln, Colonial Laws of New York, 4:748
173. "An Act to prevent firing of guns charged with shot or ball in the town of Boston," 1746, Massachusetts Session Laws
174. "An Act for the more effectual Preventing Accidents," 1750, Mitchell, Statutes at Large, 5:108
175. "An Act to Prevent the firing of guns," 1771, Lincoln, Colonial Laws of New York, 5:244
176. "An Act to prevent the discharge of firearms within towns and villages," 1812, Delaware Session Laws
177. "An Act to Prohibit Shooting or Firing off Guns near the Road or Highway on Boston Neck," 1715, Massachusetts Session Laws
178. "An Act to Prevent Shooting with Guns and Pistols across Highways," 1768, Rhode Island Session Laws
179. "An Act to prevent the hunting of deer and other wild beasts," 1760, Mitchell, Statutes at Large, 6:46
180. and "An Act for the Preservation of Deer, and other Game, and to prevent trespassing with Guns," 1771, New Jersey Session Laws
181. "An Act for the better Regulation of Fowling," 1717, Massachusetts Session Laws
182. "An Act to prevent the Killing of Deer out of Season," 1722, Bush, Laws of the Royal Colony, 2:293
183. "An Act to Prevent the Killing of Deer out of Season," 1721, Mitchell, Statutes at Large, 3:254
184. "An Act Against Shooting on Other Men's Lands," 1657-58, Hening, Statutes at Large, 1:437
185. and "An Act for the Preservation of Deer," 1769, McCord, Statutes at Large, 4:310
186. "An Act for the Preservation of Deer, and other Game, and to prevent trespassing with Guns," 1771, New Jersey Session Laws
187. "A Supplement to the act, entitled, An act to regulate and discipline the militia of this state," 1798, Maryland Session Laws
188. and "An Act in addition to the several Acts already made for the prudent storage of Gun Powder within the Town of Boston," 1783, Massachusetts Session Laws
189. "An additional act to an act, intitled, An act, to prevent killing deer at unseasonable times, and for putting a stop to many abuses committed by white persons, under pretense of hunting," 1745, North Carolina Session Laws
190. On Bacon's Rebellion, see Morgan, American Slavery, American Freedom, Book III. On the Regulators, see Marjoleine Kars, Breaking Loose Together: The Regulator Rebellion in Pre-Revolulionary North Carolina (Chapel Hill: University of North Carolina Press, 2002)
191. On New Jersey and New York, see Edward Countryman, '"Out of the Bounds of Law': Northern Land Rioters in the Eighteenth Century," in The American Revolution, ed. Alfred F. Young (Dekalb: Northern Illinois University Press, 1976): 37-69
192. The first law restraining gun ownership by citizens mentioned in the secondary literature is New York's 1911 Sullivan Law, which prohibited the ownership of concealable arms without a police permit. This raises the possibility that the legislative restraint discussed here continued for a third century, giving way only to the Progressive Era reevaluation of the police power. See Robert J. Cottrol and Raymond T. Diamond, "Never Intended to be Applied to the White Population": Firearms Regulation and Racial Disparity - The Redeemed South's Legacy to a National Jurisprudence," Chicago-Kent Law Review 70 (1995): 1307-35
193. Cornell, "Comment: A New Paradigm for the Second Amendment," Law and History Review 22 (2004): 161-67, at 165
194. H. Richard Uviller and William G. Merkel, "Comment: Scottish Factors and the Origins of the Second Amendment: Some Reflections on David Thomas Konig's Rediscovery of the Caledonian Background of the American Right to Arms," Law and History Review 22 (2004): 169-77, at 172
195. and Konig, "Missing Transatlantic Context," 153
196. Cornell, "Don't Know Much About History," 672
197. and Cornell, "Myth of Consensus," 256-60
198. United States v. Miller et al., 307 U.S. 174 ( 1939)
199. Saul Cornell acknowledges that the right to keep and bear arms belonged to citizens as a class that excluded aliens. He has not, however, acknowledged that the right to keep arms extended to all citizens. See Cornell, "New Paradigm," 165
200. See above, notes 48 and 49
201. Scott v. Sanford, 60 U.S. 393 (1857)
202. Cornell, "New Paradigm," 165
203. and Uviller and Merkel, "Scottish Factors," 172
204. The keeping of arms was strongly encouraged by the penalties imposed under state militia laws, and the state measured compliance by mandating an annual public display of arms. Where the state ordered those outside the militia to keep arms, it generally required them to participate in the annual "viewing" of arms. Thus at certain moments the private act of keeping arms at home became public. The Militia Act of 1792 laid down detailed specifications for militia muskets of standard dimensions and caliber. Nevertheless, militiamen brought rifles, shotguns, and fowling pieces to muster well into the nineteenth century, and the practice was officially tolerated. For an assertion that only standard militia muskets fell within constitutional protection, and a rebuttal, see Saul Cornell, "Myth of Consensus," 261-62
205. and James Henretta, "Collective Responsibilities, Private Arms, and State Regulation," Symposium: The Second Amendment and the Future of Gun Control, Fordham Law Review 73 (2004): 529-37, at 535-36
206. For examples of militia returns counting all types of weapons, see "Return of the Arms of the State of Pennsylvania," 1812, Pennsylvania Archives (1852), ser., 6, 7:929
207. and "Abstract from the Annual Returns of the Militia of North Carolina for the Year 1809," AG 1, Letters, Orders, Returns, etc., 1807-1812, Records of the Adjutant General's Department, North Carolina State Archives
208. See Uviller and Merkel, The Militia and the Right to Arms, chap. 2
209. and the contributions to the "Forum: Reconsidering the Second Amendment," Law and History Review 22 (2004): 119-82
210. Neil H. Cogan, The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins (New York: Oxford University Press, 1997), 181-82. Adams later withdrew his proposed amendment
211. Oscar Handlin and Mary Handlin, eds., The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780 (Cambridge: Harvard University Press, 1966), 446, 575, and 624
212. Uviller and Merkel, The Militia and the Right to Arms, 82
213. Cumberland Gazette, December 8, 1786, January 12 and 26, and March 18, 1787
214. Konig, "Persistence of Resistance," 540-45
215. Jedidiah Morse, The American Universal Geography (Boston: Isaiah Thomas and Ebenezer T. Andrew, 1793), 1:379
216. Tench Coxe, "A Pennsylvanian," Philadelphia Federal Gazette, June 18, 1789
217. For Madison's text of the Bill of Rights, see "Amendments to the Constitution, June 8, 1789," in Charles F. Hobson et al., eds., The Papers of James Madison, 17 vols. (Charlottesville: University Press of Virginia, 1962-1991), 12:196-210
218. See Cornell, "Don't Know Much About History," 668-70
219. and Rakove, "Highest Stage of Originalism," 123, n. 48
220. Cogan, Complete Bill of Rights, 170
221. Boston Independent Chronicle, August 6, 1789
222. Federal Gazette and Baltimore Daily Advertiser, September 6, 1796
223. Resolutions of the Citizens of Fayette and the Adjacent Counties, Kentucky, Kentucky Gazette, August 15, 1798
224. St. George Tucker, Blackstone's Commentaries (Philadelphia: William Young Birch and Abraham Small, 1803), 1:272-74 and 300, 2:143, and 3:414
225. William Rawle, A View of the Constitution of the United States of America (Philadelphia: Philip H. Nicklin, 1829), 125-26
226. Aymette v. the State, 21 Tenn. 154 (1840)
227. See, for example, Bellesiles, "Gun Laws," 587
228. and Cornell, "To Keep and Bear Arms," 16. In 2004, Saul Cornell and Nathan DeDino acknowledged that the court in Aymette made a distinction between keeping and bearing arms, but suggested that the distinction was novel in 1840 and that it did not significantly influence Second Amendment jurisprudence. See "A Well Regulated Right," 516-17
229. David C. Williams, The Mythic Meanings of the Second Amendment: Taming Political Violence in a Constitutional Republic (New Haven: Yale University Press, 2003)