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Once More unto the Breach, Dear Friends
Published online by Cambridge University Press: 18 August 2010
Extract
In the 1990s the issue of gun control raised political passions to a fevered pitch. It is perhaps to be expected that some of that passion has spilled over into the scholarly debate about the meaning of the Second Amendment. I see that passion in the visceral responses my work has generated, in Saul Cornell's reflexive impulse to dismiss my work with crude labels, and in David Konig's unwillingness to engage fully the nuances of my thesis, which is neither strong nor weak, but certainly complex. In this context I appreciate William Merkel's courteous engagement of the full complexity of my argument.
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References
1. See 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): 141.CrossRefGoogle Scholar
2. Somewhat more compelling is the officer's lament that Konig attributes to Joseph Hosmer. The statement cited, however, was not spoken by Hosmer. It is from a post-Revolutionary account of the battle by Thaddeus Blood. Blood was not an officer, but a rank and file militiaman. Nor is the cited observation a lament. In his account, Blood explained that many officers on the field lacked legal commissions, being only “nominally appointed” by the Provincial Congress, “and that all the services performed were voluntary both of officers and men.” After the fight at the bridge, Blood observed that the militia divided, and that “everyone appeared to be his own commander. It was thought best to go to the east part of town and take them as they came back. Each took his own station.” The misinterpretation of Blood's statement as a lament is common in the secondary literature. The misattribution is Konig's alone. See the “Deposition of Thaddeus Blood regarding April 19, 1775,” Keyes, John Shepard Papers, 1837–1908Google Scholar, Box 1, folder 2, Special Collections, Concord Free Public Library; and Gross, Robert A., The Minutemen and Their World (New York: Hill and Wang, 1976), 126Google Scholar.
3. See Konig, David Thomas, “Arms and the Man: What Did the Right to ‘Keep’ Arms Mean in the Early Republic,” Law and History Review 25 (2007): 181–82.Google Scholar According to Marcus Cunliffe, for example, the unclassified militia established under the Militia act of 1792 remained a viable institution, albeit one of limited military utility, into the 1820s, before withering under the politicized ridicule of the 1830s and collapsing altogether in the 1840s. William Riker's narrative is entirely consistent with this. See Cunliffe, Marcus, Soldiers and Civilians: The Martial Spirit in America, 1775–1865 (Boston: Little, Brown, 1968), 179–212Google Scholar; and Riker, William H., Soldiers of the States: The Role of the National Guard in American Democracy (Washington: Public Affairs Press, 1957), 21–40.Google Scholar For a graphic illustration of the gradual process of decline, see Chart I, Riker, , Soldiers of the States, 25Google Scholar.
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6. Compare Mahon, John K., The American Militia: Decade of Decision, 1789–1800 (Gainesville: University of Florida Press, 1960), 42Google Scholar with “Return of the Sixth Regiment of Militia,” Historical Collections of the Danvers Historical Society (1913–1987), 3:17.Google Scholar Mahon also mis-cites the source document as found in volume 2, page 17. The material on that page is unrelated.
7. See Konig, , “Arms and the Man,” 180.Google Scholar The best measure of the viability of the militia during the post-Revolutionary generation is the annual return of the militia of the United States for 1810. For a thorough analysis of this return, see Churchill, Robert H., “Gun Ownership in Early America: A Survey of Manuscript Militia Returns,” William and Mary Quarterly, 3d ser., 60 (2003): 635–40 and table ivGoogle Scholar.
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15. Cornell, Saul and DeDino, Nathan, “A Well Regulated Right: The Early American Origins of Gun Control,” Fordham Law Review 73 (2004): 513–14.Google Scholar
16. Ibid., 514–15.
17. “An Act to suppress the sale and use of Bowie Knives and Arkansas Tooth Picks in this State,” 1838, Tennessee Session Laws.
18. “An Act to guard and protect the citizens of this State, against the unwarrantable and too prevalent use of deadly weapons,” 1837, Georgia Session Laws; Nunn v. State, 1 Ga. 243 (1846)Google Scholar.
19. Ibid., 251.
20. “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), 2:95Google ScholarPubMed.
21. 1 Ga. 243, at 246.
22. It is possible that if confronted with a statute similar to Georgia's, the Tennessee court would have applied the logic of Aymette by drawing a line between keeping firearms and keeping knives, on the basis that all firearms might have some military utility.
23. Cornell, , “Early American Gun Regulation,” 202.Google Scholar
24. See Churchill, , “Gun Regulation,” 167Google Scholar, Konig, , “Arms and the Man,” 181Google Scholar , and Cornell, , “Early American Gun Regulation,” 200Google Scholar.