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Arms and the Man: What Did the Right to “Keep” Arms Mean in the Early Republic?

Published online by Cambridge University Press:  18 August 2010

David Thomas Konig
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Extract

Just as Virgil linked “arms and the man” in his epic history of Rome's origins, Americans have linked the bearing of arms with their own national origins. Regardless of other uses to which his image has been put, the Minuteman who stands guard at Concord reminds us that he stood his ground in 1775 to stop British regulars from seizing assembled weapons at Concord and disarming the Middlesex County militia. Robert Churchill provides us with an entertaining anecdote of a young man to illustrate his claim that such men actually believed that they were protecting their personal right to keep and bear arms. Asserting that he had become ill, the militiaman was “skedaddling home” after his company's engagement with British regulars at Concord in 1775. Though his captain's wife told him that “you must not take your gun with you,” he retorted, “Yes, I shall.” His refusal to yield his gun, explains Churchill, “transcended its importance in allowing him to meet his communal obligation. The gun was his, and he believed he had a right to keep it.” But this anecdote, though charming, demands closer examination. Like much in Churchill's essay, it reveals that items or statements taken out of context can be misinterpreted and misleading.

Type
Forum: Comment
Information
Law and History Review , Volume 25 , Issue 1 , Spring 2007 , pp. 177 - 186
Copyright
Copyright © the Board of Trustees of the University of Illinois 2007

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References

1. “Arma virumque cano” (“I sing of arms and the man”), Virgil, , Aeneid, line 1Google Scholar.

2. Churchill, Robert H., “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): 139–40Google Scholar, citing Gross, Robert A., The Minutemen and Their World (New York: Hill and Wang, 1976), 126Google Scholar.

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4. Gross, , Minutemen, 126.Google Scholar 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.” Locke, John, 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. Laslett, Peter (New York: Cambridge University Press, 1963), 396Google Scholar.

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8. Ibid., 171.

9. For “repudiation,” see Churchill, , “Gun Regulation,” 155.Google Scholar The power to impress arms for militia use, moreover, can hardly be called an exercise of “emergency military powers in a manner that effectively disarmed citizens.” Ibid. The term “disarm” is misapplied if used to describe the mobilization of resources against external enemies; it was a means for the sovereign to suppress internal opposition, such as Roman Catholics or Jacobites in Britain, or Tories in the new republic.

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16. 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.Google Scholar

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19. 2nd Congress, 2nd Session, ch. 33 (1792), sec. 11.

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21. Mahon, , American Militia, 42.Google Scholar See also Cunliffe, Marcus, Soldiers and Civilians: The Martial Spirit in America, 1775–1865 (Boston: Little, Brown, 1968)Google Scholar ; Riker, William H., Soldiers of the States: The Role of the National Guard in American Democracy (Washington, D.C.: Public Affairs, 1957), 28–30Google Scholar.

22. 2nd Congress, 2nd Session, ch. 33 (1792).

23. 5th Congress, 2nd Session, ch. 66 (1798). Congress acted again in 1808. 10th Congress, Session 1, chap. 55 (1808).

24. “Militia returns from the era of the American Revolution and from 1810 show that over two-thirds of northern militiamen came armed to muster.” Churchill, , “Gun Regulation,” 147Google Scholar.

25. Vermont and South Carolina had to send purchasing agents to Europe in search of guns. Cunliffe, , Soldiers and Civilians, 185.Google Scholar 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, 2Google Scholar.

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27. Sources cited in ibid., n. 25.

28. Ibid., 149 (emphasis added).

29. See ibid., 149, n. 27, and references cited. Two sources adduced are speeches in Congress urging “the people” to “keep their arms in their hands” to maintain the independence of the nation (Rhea) and supporting measures “that every citizen shall furnish and constantly keep at his own expense those arms which might be necessary for his defence against external force and internal oppression” (Bacon). New Jersey's law refers to “Ammunition to be kept by each Man” in the militia. Those of Connecticut (1782), Virginia (1784), Massachusetts (1793), and Vermont (1797) use “keep” in this same way, in militia statutes.

30. “Col. John Wilkins to Col. Clement Biddle,” Pittsburgh, 21 December 1792Google Scholar, Pennsylvania Archives, ser. 2, vol. 4 (1876), 742Google Scholar.

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32. Rakove, , “Words, Deeds, and Guns,” 208.Google Scholar

33. Annals of Congress, 11th Congress, 2nd session (March 1810), 1571.Google Scholar Dana was referring to Article I, Section 9, Clause 4 of the federal Constitution.

34. Annals of Congress, 11th Congress, 2nd Session (March 1810), 1567.Google Scholar

35. Bacon's speech of 5 December 1808 was published in The Pittsfield Sun; or, Republican Monitor, 9 January 1809Google Scholar.

36. The National Intelligencer and Washington Advertiser, 8 February 1812.Google Scholar From this association with a poll tax, the “civic” nature of bearing arms might be inferred as well.