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Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment

Published online by Cambridge University Press:  18 August 2010

Robert H. Churchill
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Extract

On April 19, 1775, the town of Concord, Massachusetts was the scene of an interesting confrontation. After the militia of Concord and the surrounding towns had driven the British back from the North Bridge, some of the militiamen began to disperse. The wife of Nathan Barrett, captain of one of Concord's militia companies, spotted one of her husband's men skedaddling home. She went out of her house to confront him, and when he explained that he was feeling ill, she responded that he must not take his gun with him. When he replied simply, “Yes, I shall,” she exclaimed, “No, stop, I must have it.” The militiaman refused and began to walk off. Mrs. Barrett gave chase, but her quarry was too quick.

Type
Forum: Rethinking the Second Amendment
Information
Law and History Review , Volume 25 , Issue 1 , Spring 2007 , pp. 139 - 176
Copyright
Copyright © the Board of Trustees of the University of Illinois 2007

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References

1. On the confrontation between Mrs. Barrett and the militiaman, see Gross, Robert A., The Minutemen and Their World (New York: Hill and Wang, 1976), 126Google Scholar.

2. Levinson, Sanford, “The Embarrassing Second Amendment,” Yale Law Journal 99 (1989): 637–59.CrossRefGoogle Scholar

3. See the discussions of recent scholarship in United States v. Emerson, 270 F.3d 203 (2001)Google Scholar , and Sylveira v. Lockyer, 312 F.3d 1052 (2002)Google Scholar.

4. For individual rights interpretations, see Malcolm, Joyce Lee, To Keep and Bear Arms: The Origins of an Anglo-American Right (Cambridge: Harvard University Press, 1994)Google Scholar; Cottrol, Robert J., Gun Control and the Constitution: Sources and Explorations on the Second Amendment (New York: Garland Publishing, 1994)Google Scholar; Halbrook, Stephen, That Every Man Be Armed (Albuquerque: University of New Mexico Press, 1984)Google Scholar; Kates, Don B., “Handgun Prohibition and the Original Meaning of the Second Amendment,” Michigan Law Review 82 (1983): 204–73CrossRefGoogle Scholar; and the contributions to the special Second Amendment issue of theTennessee Law Review 62 (Spring 1995).Google Scholar For collective rights and statist interpretations, see Wills, Garry, “To Keep and Bear Arms,” New York Review of Books 42 (1995): 62–73Google Scholar; Cornell, Saul, “Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory,” Constitutional Commentary 16 (1999): 221–45Google Scholar; Bogus, Carl T., “The Hidden History of the Second Amendment,” University of California at Davis Law Review 31 (1997): 309–408Google Scholar; and the contributions of Bellesiles, Michael, Rakove, Jack, and Finkelman, Paul to the “Symposium on the Second Amendment,” Chicago-Kent Law Review 76 (2000)Google Scholar.

5. For recent attempts to create a new paradigm for the interpretation of the Second Amendment, see Cornell, Saul, “Don't Know Much About History: The Current Crisis in Second Amendment Scholarship,” Northern Kentucky University Law Review 29 (2002): 657–81Google Scholar; Uviller, H. Richard and Merkel, William G., The Militia and the Right to Arms, or, How the Second Amendment Fell Silent (Durham: Duke University Press, 2002)CrossRefGoogle Scholar; and Konig, David Thomas, “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): 119–59CrossRefGoogle Scholar.

6. Cornell, Saul, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788–1828 (Chapel Hill: University of North Carolina Press, 1999), 207–10Google Scholar; and Konig, David Thomas, “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): 539–47Google Scholar.

7. Malcolm, To Keep and Bear Arms; Bellesiles, “Gun Laws in Early America: The Regulation of Firearms Ownership, 1607–1794,” Law and History Review 16 (1998): 567–89CrossRefGoogle Scholar; and Cornell, “Commonplace or Anachronism.” For a recent contribution, see Cornell, Saul and DeDino, Nathan, “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): 487–528Google Scholar.

8. Malcolm, , To Keep and Bear Arms, chaps. 6–8Google Scholar; Bellesiles, , “Gun Laws,” 585–86Google Scholar; Cornell, and DeDino, , “Well Regulated Right,” 500–502.Google Scholar 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.

9. 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. 8Google Scholar; Bellesiles, , Arming America: The Origins of a National Gun Culture (New York: Knopf, 2000), chap. 1Google Scholar; Bellesiles, , “Gun Laws,” 567–77Google Scholar; and Konig, , “Missing Transatlantic Context,” 153–59. For the impact of this conclusion on Second Amendment scholarship, see the contributions ofGoogle ScholarCottrol, Robert J., Carter, Gregg, and Spitzer, Robert to “Gun Laws and Policies,” Focus on Law Studies 18 (Spring 2003):1–20Google Scholar.

10. Bellesiles, , “Gun Laws,” 576 and 586Google Scholar; Cornell, Saul, “Commonplace or Anachronism,” 228–31Google Scholar; Cornell, Saul, “To Keep and Bear Arms,” in Whose Right to Arms Did the Second Amendment Protect? ed. Cornell, Saul (New York: Bedford/St. Martin's, 2000), 13Google Scholar; Cornell, , “Don't Know Much About History,” 671Google Scholar; 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. al, Jeffrey L. Pasley et. (Chapel Hill: University of North Carolina Press, 2004), 251–73, at 256 and 259–60Google Scholar.

11. 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).Google Scholar For the colonial period through 1775, I consulted the microfiche edition of Colonial Session Laws (Buffalo: William S. Hein & Co., 1987).Google Scholar 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.

12. Coxe, Tench, “A Pennsylvanian, No. 3,” Pennsylvania Gazette, February 20, 1788.Google Scholar

13. On the English Militia, see Schwoerer, Lois, No Standing Armies: The Antiarmy Ideology in Seventeenth-Century England (Baltimore: Johns Hopkins University Press, 1974), 14–15Google Scholar; Smith, A. Hassell, “Militia Rates and Militia Statutes, 1558–1663,” in The English Commonwealth, 1547–1640, ed. al, Peter Clark et. (Leicester, U.K.: Leicester University Press: 1979): 93–110Google Scholar; and King, Ann J., ed., Muster Books for North and East Hertfordshire, 1580–1605 (Hertfordshire Record Society, 1906), 50–82 and 88–96Google Scholar.

14. Ibid.; 4 & 5 Philip and Mary, c. 2 (1557); “An Act for Ordering the Forces in the Several Counties of this Kingdom,” 13 & 14 Charles I, c. 3 (1662); 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)Google Scholar.

15. “An act for the better ordering of the militia forces in the several counties of that part of Great Britain called England,” 30 II, George, c. 25 (1757).Google Scholar

16. For colonial militia statutes mandating universal militia training, see The General Laws and Liberties of Connecticut Colonie (1672), 49–51Google Scholar; “An Act for Regulating the Militia,” 1693, Massachusetts Session Laws; “An Act for Regulating the Militia,” 1717, New Hampshire Session Laws; “An Act, Regulating the Militia in this Colony,” 1718, Rhode Island Session Laws; “The Duke of York's Laws, 1665–75,” Cushing, John D., ed., The Earliest Printed Laws of New York, 1665–1693 (Wilmington: Glazier, 1978), 153Google Scholar; “An Act for Regulating the Militia of the Colony of New York,” 1755, al, Charles Z. Lincoln et., eds., Colonial Laws of New York (Albany: James B. Lyon, 1894), 3:1051Google Scholar; “An Act for the Settling the Militia in this Province,” 1704, Bush, Bernard, ed., Laws of the Royal Colony of New Jersey, 1703–1745 (Trenton: New Jersey State Library, 1977), 2:15Google Scholar; “An Act for Establishing a Militia within this Government,” 1742, Delaware Session Laws; “An Act for the Better Regulating the Militia of this Government,” 1746, North Carolina Session Laws; “An Act for the Better Settling and Regulating the Militia, and Appointing Look Outs,” 1703, McCord, David J., ed., The Statutes at Large of South Carolina (Columbia: A. S. Johnston, 1841), 9:617Google Scholar; and “An Act for the Better Ordering the Militia of this Province,” 1765, Georgia Session Laws.

17. 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.

18. 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, al, James T. Mitchell et., eds., The Statutes at Large of Pennsylvania from 1682 to 1801 (Harrisburg: William Stanley Ray, 1896), 5:197.Google Scholar Pennsylvania's first universal militia statute came in 1777. See “An Act to Regulate the Militia of the Commonwealth of Pennsylvania,” 1777, ibid., 9:75.

19. “An Act for the ordering and regulating the Militia of this Province for the better defense and security thereof,” 1704, Maryland Session Laws. Maryland repealed this exclusion in 1777. See “An Act to regulate the militia,” 1777, Maryland Session Laws.

20. See the County, Middlesex, list, Virginia militia, Crozier, William Armstrong, ed., Virginia Colonial Militia, 1651–1776 (New York: Genealogical Association, 1905), 98.Google Scholar For Virginia's first universal militia statute, see “An Act for settling the Militia,” 1705, Hening, William W., ed., The Statutes at Large, Being a Collection of all the Laws of Virginia (Richmond: Franklin Press, 1809–1823), 3:335Google Scholar.

21. 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),Google ScholarThe Statutes at Large passed in the Parliaments of Ireland (Dublin: George Grierson, 1786), 4:333Google Scholar; 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.Google Scholar 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), 29Google Scholar.

22. In the census of 1755, the colony reported 5265 “soldiers” and 2997 additional able-bodied 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.

23. Ibid. The census reported 5023 privately owned “small arms,” 2418 swords and 614 pistols in the colony. In 1996, Michael Bellesiles asserted that gun ownership was exceptional in early America. After Bellesiles reiterated this assertion in Arming America, published in 2000, his scholarship came under intense criticism. 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): 424–53CrossRefGoogle Scholar; Lindgren, James and Heather, Justin, “Counting Guns in Early America,” William and Mary Law Review 43 (2002): 1777–1842Google Scholar; and Churchill, Robert H., “Gun Ownership in Early America: A Survey of Manuscript Militia Returns,” William and Mary Quarterly, 3d ser., 60 (2003): 615–42.CrossRefGoogle Scholar 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); 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) ; Main, Gloria, “Many Things Forgotten: The Use of Probate Records in Arming America,” William and Mary Quarterly, 3d ser., 59 (2002): 211–16CrossRefGoogle Scholar; and McGaw, Judith A., “‘So Much Depends upon a Red Wheel Barrow’: Agricultural Tool Ownership in the Eighteenth-Century Mid-Atlantic,” in Early American Technology: Making and Doing Things from the Colonial Era to 1850, ed. McGaw, Judith A. (Chapel Hill: University of North Carolina Press, 1994), 332.Google Scholar 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.

24. “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, 3:503Google Scholar; “An Act for the better regulating the Militia of this Province,” 1747, McCord, , Statutes at Large, 9:645Google Scholar; “An Act for the Better Ordering the Militia of this Province,” 1765, Georgia Session Laws.

25. New Haven's Settling in New England and some Laws for Government (London, 1656), 64Google Scholar; “Bill for the Settlement of the Militia,” 1684, Lincoln, , Laws of Colonial New York, 1:161Google Scholar; “An Act for Establishing a Militia within this Government,” 1742, Delaware Session Laws; and “An Act for Amending and further continuing the act for the better regulating and disciplining the Militia,” 1762, Hening, , Statutes at Large, 7:534Google Scholar.

26. “An Act concerning Servants and Slaves,” 1741, North Carolina Session Laws; “An Act for Disarming Papists and Reputed Papists, refusing to take the oaths to the Government,” (1756), Hening, , Statutes at Large, 7:35Google Scholar; 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, 1747Google Scholar.

27. For post-colonial examples of this usage, see “An Act for the regulating, training, and arraying of the Militia,” 1781, New Jersey Session Laws; “An Act for forming, regulating, and conducting the Military Force of this State,” 1782, Connecticut Session Laws; “An act for amending the several laws for regulating and disciplining the militia and guarding against invasions and insurrections,” 1784, Hening, , Statutes at Large, 11:476Google Scholar; “An Act for regulating and governing the Militia of the Commonwealth of Massachusetts,” 1793, Massachusetts Session Laws; “An act for regulating and governing the Militia of this state,” 1797, Vermont Session Laws; 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 1042Google Scholar.

28. “Declaration of the Inhabitants of Queen's County, New York,” December 6, 1775,Google ScholarCalendar of Historical Manuscripts Relating to the War of the Revolution in the Office of the Secretary of State (Albany: Weed, Parsons, and Company, 1868), 1:200–201Google Scholar.

29. Bellesiles, , “Gun Laws,” 567–73Google Scholar; and Schwoerer, Lois, “To Hold and Bear Arms: The English Perspective,” Chicago-Kent Law Review 76 (2000): 27–60Google Scholar.

30. Bellesiles, , “Gun Laws,” 586.Google Scholar

31. 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, 10:413Google Scholar; “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; and “An Act for settling the Militia,” 1681, Acts of Assembly in Jamaica, 31Google Scholar.

32. 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); 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); “An Act for Ordering the Forces in the Several Counties of this Kingdom,” 13 & 14 Charles I, c. 3 (1662); 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).

33. “Several Laws and Orders made at the General Court,” 1675, The Colonial Laws of Massachusetts (Littleton, Colo.: Fred B. Rothman and Co., 1995), 288Google Scholar; and “An Act Restrayning the Impresse of Tymber, etc.,” 1677, Hening, Statutes at Large, 2:415Google Scholar.

34. “An Act for the Better Supply of the Country with arms and ammunition,” 1684, Hening, Statutes at Large, 3:13.Google Scholar For the reaction to impressments in Massachusetts, see Nathanael Greene to Samuel Ward, Sr., December 31, 1775, Showman, Richard K., ed., Papers of General Nathanael Greene, 10 vols. (Chapel Hill: University of North Carolina Press [for the Rhode Island Historical Society], 1976–1996), 1:173Google Scholar; and George Washington to the Massachusetts General Court, January 13, 1776, Philander al, D. Chase et., eds., Papers of George Washington, Revolutionary War Series, 9 vols. to date (Charlottesville: University of Virginia Press, 1985–1998), 2:77.Google Scholar 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), 1:385Google Scholar.

35. “An Act for Settling the Militia,” 1705, Hening, Statutes at Large, 3:335Google Scholar; and “An Act for the Ordering and Regulating the Militia of this Province for the Better Defense and Security Thereof,” 1704, Maryland Session Laws. 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, 7:106Google Scholar.

36. On the decision against impressments in Massachusetts, compare the resolutions of the Massachusetts Provincial Congress on June 15 and 17, 1775, in Lincoln, William, ed., The Journals of Each Provincial Congress of Massachusetts (1838), 336 and 350.Google Scholar 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, al, J. H. Turnbull et., eds., The Public Records of the Colony of Connecticut (Hartford: Brown and Parsons, 1850–1890), 14:417Google Scholar; and the order of the New York Provincial Council, May 21, 1776, Fernow, Berthold, ed., New York in the Revolution (Albany: Weed, Parsons and Co., 1887), 1:103Google Scholar.

37. Order of the New York Provincial Council, August 10, 1776, Fernow, , New York in the Revolution, 1:122Google Scholar; “An Act for Raising and Equipping a Body of Minutemen,” May, 1776, Turnbull, , The Public Records of the Colony of Connecticut, 15:290Google Scholar; and Order of the Pennsylvania Council of Safety, Pennsylvania Gazette, November 27, 1776.Google Scholar Pennsylvania authorized the practice again during a 1781 invasion scare that prompted the legislature to prepare to evacuate the entire city of Philadelphia. See “An Act to Make Effectual Provision for the Defense of this State,” 1781, Mitchell, , Statutes at Large, 10:361.Google Scholar For the tight limits on impressment in Virginia, see “An Act for Providing Against Invasions and Insurrections,” 1777, Hening, , Statutes at Large, 9:291Google Scholar.

38. 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; and “An Act to Organize the Militia of this State,” 1794, ibid. 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; “An Act for Amending the Several Laws for Regulating and Disciplining the Militia, and Guarding against Invasions and Insurrections,” 1784, Hening, , Statutes at Large, 11:476Google Scholar; and “An Act for Establishing a Militia in this State,” 1786, North Carolina Session Laws.

39. 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 ; Hastings, Hugh, ed., The Public Papers of Daniel D. Tompkins, Governor of New York, 1807–1817 (Albany: J. B. Lyon, 1902)Google Scholar; and The Public Records of the State of Connecticut, 17 vols. (Hartford: Case, Lockwood, and Brainard, 1896–)Google Scholar , vols. 1–17 (1776–1815).

40. 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. 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.

41. Smith v. Ishenhour, 43 Tenn. 214 (1866), at 217.Google Scholar

42. Novak, Wiliam J., “Salus Populi: The Roots of Regulation in America, 1787–1873” (Ph.D. dissertation, Brandeis University, 1992).Google Scholar See also Novak, , The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996)Google Scholar.

43. Coxe, Tench, 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.Google Scholar

44. “An Act for Ordering the Forces in the Several Counties of this Kingdom,” 13 & 14 Charles, I, c. 3 (1662); andGoogle Scholar“An Act for the Better Securing the Government by Disarming Papists and reputed Papists,” 1 William, and Mary, , c. 15 (1688).Google Scholar 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 II, Charles, stat. 2, c. 1 (1677).Google Scholar That Act required members of Parliament to repudiate the doctrine of transubstantiation, the mass, and the cult of Mary.

45. See generally Bellesiles, , “Gun Laws,” 574–84Google Scholar; and Morgan, Edmund S., American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York: W. W. Norton, 1975), 316–37 and 363–87Google Scholar.

46. Bellesiles, , “Gun Laws,” 574–76Google Scholar; Cornell, , “Commonplace or Anachronism,” 228–31Google Scholar; Cornell, , “To Keep and Bear Arms,” 13Google Scholar; Cornell, , “Don't Know Much About History,” 671Google Scholar; and Cornell, , “Myth of Consensus,” 256–60.Google Scholar 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 135Google Scholar; Uviller, and Merkel, , The Militia and the Right to Arms, 80Google Scholar; Finkelman, , “The Second Amendment in Historical Perspective,” Chicago-Kent Law Review 76 (2000): 211Google Scholar; and Konig, , “Missing Transatlantic Context,” 143Google Scholar.

47. See 1 George I, stat. 2, c. 13 (1714); and “An Act for Disarming Papists and Reputed Papists, refusing to take the oaths to the Government,” (1756), Hening, , Statutes at Large, 7:35.Google Scholar 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,” 574Google Scholar; and al, William H. Browne et., eds., Archives of Maryland (Baltimore: Maryland Historical Society, 1883–1972), 52:441.Google Scholar 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, Webb's, GeorgeThe Office and Authority of a Justice of the Peace (1739),Google Scholar 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. 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, Cushing, John D., ed., The Earliest Printed Laws of North Carolina, 1669–1751 (Wilmington: Michael Glazier, 1977), 1:293Google Scholar; “An act to put in Force in this Province the several Statutes of the Kingdom of England or South Britain, therein particularly mentioned,” 1712, Cushing, John D., ed., The Earliest Printed Laws of South Carolina, 1692–1734 (Wilmington: Michael Glazier, 1978), 1:236Google Scholar; Webb, , Office and Authority, 133Google Scholar; and “An Act for the Security of His Majesty's Government in New Jersey,” 1722, Bush, , Laws of the Royal Colony, 2:284.Google Scholar In sum, there is no clear evidence that 1 William and Mary, c.15 was in force in the colonies.

48. Cornell, , “Commonplace or Anachronism,” 228Google Scholar; “Don't Know Much About History,” 672; and “Myth of Consensus,” 259.

49. 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.Google Scholar 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, 8:559Google Scholar; 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.

50. “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, 9:111Google Scholar; 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.

51. For Maryland, see “An Act for the Better Security of the Government,” 1777; “An Act to prevent and suppress insurrections,” 1778; and “An Act to raise two battalions of militia for reinforcing the Continental Army,” 1781, Maryland Session Laws. For North Carolina, see “An Act for Directing the Method of Appointing Jurors,” 1777, North Carolina Session Laws. 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.Google Scholar 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, 5:17Google Scholar.

52. 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, 9:11Google Scholar; and “An Act for Constituting a Council of Safety,” 1777, New Jersey Session Laws.

53. 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, I 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.

54. 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.Google Scholar For examples of colonial legislation authorizing door-to-door surveys of arms, see the order of the Governor and Council, March 28, 1667, in Bartlett, John Russell, ed., Records of the Colony of Rhode Island and Providence Plantations (Providence: A. Crawford Greene and Brother, 1857), 2:196Google Scholar; “An Act for the better regulating of the Militia of this Province,” 1747, McCord, , Statutes at Large, 9:645Google Scholar; 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.

55. “An Act in Addition to the Act for regulating the Militia,” 1718, New Hampshire Session Laws ; Acts and Laws of his Majesties Colony of Connecticut in New England (1702), 5Google Scholar; “An Act for Regulating the Watch in the Town of Savannah,” 1759, Candler, Allen D., The Colonial Records of the State of Georgia (Atlanta: The Franklin Printing and Publ. Co., 1904–1916), 18:295Google Scholar; “An Act to prevent the pernicious Practice of hunting with a Gun in the Night by Fire Light,” 1774, North Carolina Session Laws; “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), 2:152Google Scholar; “An Act to suppress the disorderly practice of firing guns, etc.,” 1774, Mitchell, , Statutes at Large, 8:410Google Scholar; “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, 1:401Google Scholar; and 18 Charles I, c. 35 (Virginia, 1642), ibid., 1:261.

56. “An Act for preventing accidents that may happen by fire,” 1721, Mitchell, , Statutes at Large, 5:252Google Scholar; “An Act to prevent Hunting with Firearms in the City of New York, and the liberties thereof,” 1763, Lincoln, , Colonial Laws of New York, 4:748Google Scholar; “An Act to prevent firing of guns charged with shot or ball in the town of Boston,” 1746, Massachusetts Session Laws; “An Act for the more effectual Preventing Accidents,” 1750, Mitchell, , Statutes at Large, 5:108Google Scholar; “An Act to Prevent the firing of guns,” 1771, Lincoln, , Colonial Laws of New York, 5:244Google Scholar; “An Act to prevent the discharge of firearms within towns and villages,” 1812, Delaware Session Laws; “An Act to Prohibit Shooting or Firing off Guns near the Road or Highway on Boston Neck,” 1715, Massachusetts Session Laws; “An Act to Prevent Shooting with Guns and Pistols across Highways,” 1768, Rhode Island Session Laws; “An Act to prevent the hunting of deer and other wild beasts,” 1760, Mitchell, , Statutes at Large, 6:46Google Scholar; and “An Act for the Preservation of Deer, and other Game, and to prevent trespassing with Guns,” 1771, New Jersey Session Laws.

57. “An Act for the better Regulation of Fowling,” 1717, Massachusetts Session Laws; “An Act to prevent the Killing of Deer out of Season,” 1722, Bush, , Laws of the Royal Colony, 2:293Google Scholar; “An Act to Prevent the Killing of Deer out of Season,” 1721, Mitchell, , Statutes at Large, 3:254Google Scholar; “An Act Against Shooting on Other Men's Lands,” 1657–58, Hening, , Statutes at Large, 1:437Google Scholar; and “An Act for the Preservation of Deer,” 1769, McCord, , Statutes at Large, 4:310Google Scholar.

58. “An Act for the Preservation of Deer, and other Game, and to prevent trespassing with Guns,” 1771, New Jersey Session Laws; “A Supplement to the act, entitled, An act to regulate and discipline the militia of this state,” 1798, Maryland Session Laws; 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.

59. “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; and “An Act for the Preservation of Deer, and other Game, and to prevent trespassing with Guns,” 1771, New Jersey Session Laws.

60. On Bacon's Rebellion, see Morgan, American Slavery, American Freedom, Book III. On the Regulators, see Kars, Marjoleine, Breaking Loose Together: The Regulator Rebellion in Pre-Revolutionary North Carolina (Chapel Hill: University of North Carolina Press, 2002).Google Scholar On New Jersey and New York, see Countryman, Edward, “‘Out of the Bounds of Law’: Northern Land Rioters in the Eighteenth Century,” in The American Revolution, ed. Young, Alfred F. (Dekalb: Northern Illinois University Press, 1976): 37–69Google Scholar.

61. 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): 1307–35Google Scholar.

62. Cornell, , “Comment: A New Paradigm for the Second Amendment,” Law and History Review 22 (2004): 161–67, at 165CrossRefGoogle Scholar; Uviller, H. Richard and Merkel, William G., “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): 169–77CrossRefGoogle Scholar , at 172; and Konig, , “Missing Transatlantic Context,” 153Google Scholar.

63. Konig, , “Missing Transatlantic Context,” 153Google Scholar; Cornell, , “Don't Know Much About History,” 672Google Scholar; and Cornell, , “Myth of Consensus,” 256–60Google Scholar.

64. United States v. Miller et al., 307 U.S. 174 (1939).Google Scholar

65. 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,” 165Google Scholar.

66. See above, notes 48 and 49.

67. Scott v. Sanford, 60 U.S. 393 (1857).Google Scholar

68. Cornell, , “New Paradigm,” 165Google Scholar; and Uviller, and Merkel, , “Scottish Factors,” 172Google Scholar.

69. 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 Cornell, Saul, “Myth of Consensus,” 261–62Google Scholar , and Henretta, James, “Collective Responsibilities, Private Arms, and State Regulation,” Symposium: The Second Amendment and the Future of Gun Control, Fordham Law Review 73 (2004): 529–37Google Scholar , at 535–36. 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, 7:929Google Scholar; 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.

70. See Uviller, and Merkel, , The Militia and the Right to Arms, chap. 2Google Scholar; and the contributions to the “Forum: Reconsidering the Second Amendment,” Law and History Review 22 (2004): 119–82Google Scholar.

71. Konig, , “Missing Transatlantic Context,” 139–57.Google Scholar

72. Ibid., 152–57.

73. Cogan, Neil H., The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins (New York: Oxford University Press, 1997), 181–82.Google Scholar Adams later withdrew his proposed amendment.

74. Ibid., 169–82.

75. Handlin, Oscar and Handlin, Mary, eds., The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780 (Cambridge: Harvard University Press, 1966), 446, 575, and 624.Google Scholar

76. Uviller, and Merkel, , The Militia and the Right to Arms, 82.Google Scholar

77. Cumberland Gazette, December 8, 1786Google Scholar , January 12 and 26, and March 18, 1787.

78. Konig, , “Persistence of Resistance,” 540–45.Google Scholar

79. Morse, Jedidiah, The American Universal Geography (Boston: Isaiah Thomas and Ebenezer T. Andrew, 1793), 1:379.Google Scholar

80. Coxe, Tench, “A Pennsylvanian,” Philadelphia Federal Gazette, June 18, 1789.Google Scholar For Madison's text of the Bill of Rights, see “Amendments to the Constitution, June 8, 1789,” in al, Charles F. Hobson et., eds., The Papers of James Madison, 17 vols. (Charlottesville: University Press of Virginia, 1962–1991), 12:196–210Google Scholar.

81. See Cornell, , “Don't Know Much About History,” 668–70Google Scholar; and Rakove, , “Highest Stage of Originalism,” 123Google Scholar , n. 48.

82. Cogan, , Complete Bill of Rights, 170.Google Scholar

83. Boston, Independent Chronicle, August 6, 1789.Google Scholar

84. Federal Gazette and Baltimore Daily Advertiser, September 6, 1796.Google Scholar

85. Resolutions of the Citizens of Fayette and the Adjacent Counties, Kentucky, , Kentucky Gazette, August 15, 1798Google Scholar.

86. “To the Freemen of Kentucky,” ibid., September 19, 1798.

87. Tucker, St. George, Blackstone's Commentaries (Philadelphia: William Young Birch and Abraham Small, 1803), 1:272–74Google Scholar and 300, 2:143, and 3:414.

88. Rawle, William, A View of the Constitution of the United States of America (Philadelphia: Philip H. Nicklin, 1829), 125–26.Google Scholar

89. Aymette v. the State, 21 Tenn. 154 (1840).Google Scholar

90. Ibid., 158–60.

91. See, for example, Bellesiles, , “Gun Laws,” 587Google Scholar; and Cornell, , “To Keep and Bear Arms,” 16.Google Scholar 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.

92. Williams, David C., The Mythic Meanings of the Second Amendment: Taming Political Violence in a Constitutional Republic (New Haven: Yale University Press, 2003).CrossRefGoogle Scholar