The Potowmack Institute
Republicanism arose in the early modern period as
a challenge to royal absolutism. Republicanism
largely overlapped with liberalism, another challenge
to royal absolutism, as initiated by Thomas Hobbes
and John Locke in seventeenth century England.
(For more on Locke see:
"What does the NRA want?"
"Charlton Heston Speaks"
"The Rule of Law")
Both republicanism and liberalism reached their full expression in the national liberalism of nation states in the nineteenth century.
Consistent with contemporary rightwing true belief Shalhope wants to find in the eighteenth century militia institution an individual right to be armed outside of any organized military or political structure. Cress explains that this right had no meaning in the context of the seventeenth and eighteenth centuries. Shalhope then wants this right to remain as a residue of constitutional liberties after the militia institution died a natural death in the early decades of the nineteenth century. By the 1830s the social and political context had changed. Colonial society had been hierarchical and deferential and contained on the coast. Social relations in the new expanding nation became fluid and open. The militia could not be maintained in the new social and political environment. More than that the militia no longer served a theoretical political purpose. Under the eighteenth century British Constitution the militia was part of a theoretical and rhetorial balance of power between the rulers and the ruled in the estates of the realm: the people, the monarchy and the aristocracy. Under the the US Constitution this balance of power no longer had any meaning. The rulers had become the ruled and the ruled the rulers. The true legacy of the Second Amendment is citizen-soldier which combined with the professional soldier of the regular army in the Selective Service Acts of the twentieth century.
What Shalhope expresses is part of contemporary ideologies of the Libertarian Right which want to invent out of the ideologies and political concepts of classical republicanism and the British Constitution a fraudulent notion of a balance of power between the people, as armed populace, and any and all government. Government for the Libertarian Right becomes a treaty among sovereign individuals. Shalhope gives another version masquerading as scholarship of the defeatist retreat from political life the Potomac Institute has called the "libertarian fantasy." See Libertarians & Conservatives," in our Archive for an informative exposition and critique from the point of view of a national security cold warrior. Shalhope's intellectual honesty comes into question when lifts out of context on two occasions the ubiquitous words from James Madison's Federalist Paper No. 46 to make his case. See "Abusing Federalist Paper No. 46" in our Archive. Or, he may have been blinded by the wishful thinking of a true believer.
The libertarian fantasy is manifest in the continuum of confused contemporary rightwing ideologies from yahoos hold up in a farm house on the prairie in defiance of all political authority to the Republican Congress which wraps itself in the rule of law as it degrades the rule of law by degrading the Office of the Presidency by making impeachment a part of electoral politics. See "The Rule of Law".
This exchange between Shalhope and Cress from the early 1980s is only the beginning of the discussion. An expanded treatment by Cress can be found in his book, Citizens in Arms (1982). A few paragraphs are cited in What does the NRA want?. See Rowland in our Archive for a treatment by another historian. See other historical sources our Resources file.
Larence Delbert Cress,
At present, Dean, College of Liberal Arts, Willamette University; at the time this was published associate professor of history at Texas A&M University.
Journal of American History, Vol. 71,
No. 1, June 1984.
©1984 JAH, used with permission.
Military service should be the responsibility of every citizen, advised Niccolò Machiavelli in The Art of War, but soldiering should be the profession of none. Freedom and military might could coexist only when military service merged with the rights and responsibilities of citizenship. Machiavelli derived his insights from the past. While Rome thrived, "there was never any soldier who made war his only occupation." Citizens bore arms in defense of the state, motivated by a commitment to the common good and officered by the nation's most respected individuals. Roman liberties succumbed to tyranny only when citizens allowed professional soldiers, unmoved by a sense of the common good, to subvert the military power of the state to their own self-interest. Hence, Machiavelli concluded, "a good man [would] not make war his only profession"; nor would a "wise prince or governor . . . allow any of his subjects or citizens to do it." A well-governed commonwealth "should take care that this art of war should be practiced in time of peace only as an exercise, and in the time of war, only out of necessity and for the acquisition of glory. Most important, the military force of society should be used only in the service of the common good: "If any citizen has another end or design in following this profession [of war], he is not a good man; if any commonwealth acts otherwise, it is not well governed." 1 Some 250 years later, the people of the United States incorporated the essence of the great Florentine political theorist's ideas into the language of the Second Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Despite the militia's poor showing during the revolutionary war, few Americans could imagine a republican government without citizens trained to arms. As the armed expression of civil authority, a militia deterred foreign aggressors while it eliminated the need for a potentially oppressive standing army. It also protected against domestic insurrection. Shays's Rebellion, the outbreak of armed insurgency in Massachusetts, had reminded all of the historic vulnerability of republican government to internal discord. The danger posed by manipulating demagogues, ambitious rulers, and foreign invaders to free institutions required the vigilance of citizen-soldiers cognizant of the common good. Thus the Second Amendment assured "the people," through the agency of "a well regulated Militia," a role in the preservation of both the external and the internal security of the Republic. It did not guarantee the right of individuals, like Daniel Shays and his followers, to closet armaments.
This view differs sharply from that offered recently by Robert E. Shalhope. He contends that the Second Amendment guaranteed individuals the right "to possess arms for their own personal defense." Shalhope concedes that the militia contributed to the political thinking that produced the amendment. Nevertheless, he argues that "Americans of the Revolutionary generation distinguished between the individual's right to keep arms and the need for a militia in which to bear them." Rather than a simple statement of the militia's place in the constitutional order, as proponents of gun control have contended, the amendment merged "two distinct, yet related rightsthe individual possession of arms and the need for a militia made up of ordinary citizens." The militia may have lost its significance for modern Americans, but, concludes Shalhope, its demise has not eroded the individual's constitutional right to arms. 2
Shalhope's essay attempts to resolve differences between opponents and proponents of gun control over the historical meaning of the Second Amendmentdifferences he credits correctly to a failure "to understand the origins of the amendment within the perspective of the late eighteenth, rather than that of the late twentieth, century." 3 Nevertheless, his effort to explain the aims of the amendment's authors is itself marred by anachronisms. Most important, he fails to place citizenship, especially the idea of citizens in arms, in a context compatible with the republican theory of revolutionary America. In the eighteenth century, citizenship, which was defined in part by militia service, connoted civic virtue, a commitment to the greater public good, not an insistence on individual prerogative. Moreover, an armed citizenry by no means implied an armed population. A well-regulated militia drawn from a community's propertied yeomen and led by its most prominent citizens preserved liberty; armed individuals threatened it. Shalhope misses much, even ignoring the implications of evidence he cites himself. This essay will show that seventeenth- and eighteenth-century republican theorists understood access to arms to be a communal, rather than an individual, right.
Between the publication of Machiavelli's works in the early sixteenth century and the official addition of the Second Amendment to the Constitution on March 1, 1792, stands a corpus of political theory, constitutional law, and legislative enactments that underscores the lingering influence of the classical republican notion that arms had an acceptable function in society only in the service of the common good. Since the mid-seventeenth century, English political theoriststhemselves drawing on the insights of Machiavellihad linked the militia to the maintenance of a balanced, stable, and free constitution. James Harrington, whose Commonwealth of Oceana was widely read by Americans of the revolutionary generation, associated political stability with the armed, enfranchised, and propertied citizen. Land gave the individual economic independence and ultimately the leisure to serve the common good through the franchise and through membership in the militia. The citizen bore arms not to deter personal assault or to protect the limits of his freehold; for Harrington, bearing arms, like voting, symbolized the political independence that allowed for and ensured a commitment to civic virtue. The citizen militia, then, was not only an agent of national defense but also a deterrent to the ambitious nature of centralized political power. 4
Advocates of political liberty writing during the tumultuous years before and after the Glorious Revolution of 1688 also emphasized the militia's importance as a guarantor of constitutional stability. Algernon Sidney warned of the rise of tyranny whenever the militia was allowed to decay. John Trenchard, later well known in the colonies as the coauthor with Thomas Gordon of Cato's Letters, began his career as a pamphleteer by chiding Parliament for providing William III with a standing army after the Treaty of Ryswick in 1697. Standing armies, he wrote, were the agents of political intrigue and corruption. Only a militia could be counted on to protect both the territory and the liberties of a free people. 5
Sidney, Trenchard, and a host of other radical Whig essayists shared with Harrington the idea that arms were "the only true badges of liberty." In "a popular or mixed Government," wrote Sidney, "the body of the People is the publick defence, and every man is arm'd and disciplin'd." No nation was secure except by relying on the military strength of its own people. Nevertheless, freedom did not depend on the armed individual. Arms guaranteed liberty only through the organization and discipline provided by the militia. More precisely, liberty was preserved "by making the Militia to consist of the same Persons as have the Property." As had Harrington, radical Whigs believed that property assured the independence of mind and action that allowed the militia to serve the common good. Calls for militia reform circulating during the first decade of William III's reign underscore the limits within which the right to bear arms was understood. Not the armed individual, but "A good militia," contended Andrew Fletcher, "is the chief part of the constitution of any free government." A rank and file well trained in the military arts and led by "persons of quality or education" will "always preserve the publick liberty." Such a military force had proven formidable in ancient times. Founding Britain's defenses on a mandatory system of militia encampments promised an opportunity to inspire a commitment to the common good and to train the citizenry at arms: "Such a [militia] camp," thought Fletcher, "would be as great a school of virtue as of military discipline." 6
John Toland, the individual most responsible for the republication of Harrington's writings at the end of the seventeenth century, joined his friend Fletcher in drafting a militia-reform scheme intended to place arms "in the hands of sober, industrious, and understanding Freemen." "By Freemen," wrote Toland, "I understand Men of Property, or Persons that are able to live of themselves." Such men, through their awareness of and commitment to the "Publick Good," had made the armies of the Roman republic invincible. Men of lesser means lacked the leisure with which "to design the Good of the Commonwealth" and were thus unreliable defenders of the public interest. Trenchard was equally committed to building a militia structure that would bring young nobles and gentry into the field, thus providing Britain with the "best disciplin'd Troops and most excellent Souldiers in the World." In the ancient republics, "arms never lodged in the Hands of any who had not an Interest in preserving the publick Peace." To the contrary, "a general Exercise of the best of their People in the use of Arms, was the only Bulwark of their Liberties; . . . the People being secured thereby as well against the Domestick Affronts of any of their own Citizens, as against the Foreign Invasions of ambitious and unruly Neighbours." In sum, the "Sword and Soveraignty always march[ed] hand in hand." The self-interested armed individual, like universal manhood suffrage, had no place in the neo-Harringtonian thought of the radical Whigs. "Most Men do as much Mischief as lay in their Power," reminded Trenchard; it was best to "take away al1 Weapons by which they may do either themselves or others an Injury." 7
Trenchard's counsel would have surprised none of his contemporaries involved in the events surrounding the Glorious Revolution. James II's use of a standing army to enforce absolute rule had contributed directly to his inglorious exile to France. He had also advanced the cause of Catholicism in England by increasing the number of Catholic officers to the exclusion of Protestantsa violation of the 1673 Test Actand by importing Irish Catholics to fill the army's expanded ranks. As the [1689 English] Bill of Rights phrased it, he "did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom." He was charged in particular with "raising and keeping a standing army . . . without consent of parliament" and with "causing several good subject being Protestants to be disarmed, at the same time when papists were both armed and employed." To correct the situation, the Bill of Rights prohibited the English monarchy from raising an army during peacetime without Parliament's consent. It also guaranteedin language that speaks to the limited dimensions of the right to bear arms in English constitutional law"that the subjects which are Protestants may have arms for their defence suitable to their conditions, and as allowed by law." 8
In other words, the Bill of Rights laid down the right of a class of citizens, Protestants, to take part in the military affairs of the realm. Nowhere was an individual's right to arm in self-defense guaranteed. Protestants "may have arms for their defence," declared the revolutionary settlement, but then only as is "suitable to their conditions and as allowed by law." Those of unsuitable condition (a statute passed during the reign of Charles II disarmed anyone owning lands with an annual value of less than L 100, other than the son or heir of an esquire or person of higher social rank) were not to be armed. Parliament also retained the prerogative to restrict future access to arms "by law." In sum, had Protestants not been "disarmed at the same time when papists were . . . armed," bearing arms might not have been a topic addressed by the revolutionary settlement. Guaranteeing access to arms for Protestants, which was linked in the same sentence to the prohibition against standing armies, was intended to ensure a stable government free from the disruptions caused by Catholic Jacobites [James II and his supporters] and the ambitious intrigues of future monarchs. The Bill of Rights gave to Parliament the responsibility to guarantee the external and domestic security of the realm. That meant guaranteeing a place for Protestants in the military affairs of the kingdom, at least so long as that fitted the larger goal of maintaining a free and stable constitutional structure. 9
After the Glorious Revolution, most political commentators in Britain lost interest in the militia as a guarantor of political freedom. Believing that the Bill of Rights had secured for Parliament the means to prevent royal misuse of the nation's military forces, men such as Daniel Defoe, John Somers, and others embraced the argument that standing armies financed by Parliament were militarily superior to the militia as well as compatible with traditional English liberties. Nevertheless, Opposition writers continued to insist that only an organized and disciplined militia composed of the landed citizenry could prevent Britain from succumbing to the same corrupting forces that had destroyed liberty in ancient Rome. Trenchard and Gordon's Cato's Letters,, frequently reprinted in the American colonies, and the writings of Francis Hutcheson at the University of Glasgow ensured that Americans remained exposed to the neoclassical republicanism of radical Whig theory. 10
James Burgh's Political Disquisitions (1774-1775), copies of which were owned by a host of prominent American leaders, provided a convenient summary of Opposition views on the relationship between the militia and the preservation of political liberty. Borrowing extensively from promilitia tracts written during the reign of William III, Burgh attacked standing armies as anathema to freedom while holding up the citizen-soldier as its only guarantor. But not just anyone should have access to the arms militia membership implied. "Men of property," Burgh insisted, "must be our only resource. . . . A militia consisting of any others than the men of property in a country, is no militia; but a mongrel army." The importance of placing arms only in the hands of those "whose interest is involved in that of their country" was historically undeniable. Rome succumbed to tyranny when landed citizens shed their responsibility for the republic's defense. On the other hand liberty survived in Switzerland because arms and citizenship remained inseparable. The lessons of history were clear: "If the militia be not upon a right foot"that is, if classical notions of the citizen in arms were violated"the liberty of the people must perish." 11
Burgh thought that circumstances in England and the American colonies on the eve of the American Revolution justified the position held by Opposition writers since Trenchard in 1697 wrote An Argument, Shewing, that a Standing Armies Inconsistent with a Free Government, and Absolutely Destructive to the Constitution of the English Monarchy. "Our times prove Mr. Trenchard a true prophet," declared the dissident essayist. Americans concerned about the constitutional foundations of liberty in the colonies agreed. In A Summary View of the Rights of British America, Thomas Jefferson, indicting George III for sending "among us large bodies of armed forces, not made up of the people here, nor raised by the authority of our laws," reflected an American awareness of the relationship between liberty and military power. The occupation of Boston by British soldiers in 1768 and again in 1774, to say nothing of the Boston Massacre, left little doubt that hired soldiers could be agents of political oppression. Important, too, was the colonial militia. In the winter and spring of 1774-1775, colonists gathered at county assemblies and provincial conventions roundly to condemn standing armies while resolvingin language that foreshadowed the Second Amendment"that a well-regulated Militia, composed of the gentlemen, freeholders, and other freemen, is the natural strength and only stable security of a free Government." At the same time, the Continental Congress urged provincial assemblies to "disarm all such as will not associate to defend the American rights by arms." 12
Such declarations merely summarized sentiment long extant in the colonies. During the Seven Years War, Thomas Pownall reminded the officers and men of the Massachusetts militia that "free government" depended on the willingness of "every freeman and every freeholder" to be a soldier. "Let therefore every man, that, appealing to his own heart, feels the least spark of virtue or freedom there, think that it is an honour which he owes himself, and a duty which he owes his country, to bear arms." Pownall did not have in mind the isolated individual standing guard over his person and property. The citizen-soldier defended life and liberty by "bear[ing] arms in the bands of his country." 13 Sermon and pamphlet literature published in the colonies after 1768 emphasized the same point. "A well-disciplined militia is the beauty, and under God, the security of a country," declared Samuel Stillman in 1770, using language that would appear again and again as relations with the British Empire worsened. The best civil constitution would be meaningless if the people were unable to deter ambitious tyrants by force of arms. "The true strength and safety of every commonwealth or limited monarchy," proclaimed James Lovell on the first anniversary of the Boston Massacre, "is the bravery of its freeholders, its militia." 14
Lovell's association of freehold status with militia membership was not coincidental. A sound militia structure ensured a citizenry ably drilled in arms, but it also defined the limits of the body politic. "The sword should never be in the hands of any, but those who have an interest in the safety of the community," declared Josiah Quincy in his widely read attack on the Boston Port Bill. Landless wanderers might be pressed into military service in an emergency, but the defense of liberty depended on a "well disciplined militia, composed of men of fortunes, of education, and virtues, . . . excited to the most vigorous action, by motives infinitely superior to the expectation of spoils." The protection of family, property, and constitutional liberties motivated these individuals to serve the common good. Hence they could be relied on to return to the "enjoyment of freedom and good order" when the danger passed. Furthermore, regular training in arms had "a natural Tendency to introduce and establish good Order, and a just Subordination among the different Classes of People in the Community." As had Machiavelli, Harrington, and the radical Whigs, Americans saw the militia as an expression of the corporate unity of society. Men of rank and substance commanded the "well regulated" militia; men of lesser means filled its rank and file. In short, the parade field reinforced the deferential social and political relationships that ensured order and a respect for authority throughout society. 15
Americans, of course, looked to the militia to protect their liberties after Great Britain returned Redcoats to American soil in the early summer of 1774. They also turned to it as new constitutions were created to replace crumbling royal authority in the late spring of 1776. Virginia's Declaration of Rightsadopted on June 12, 1776, nearly a month before the American colonies officially announced their independenceset the pattern. Article 13, drafted by George Mason and approved by a committee that included James Madison, declared "That a well-regulated Militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State." Two months later, Pennsylvania declared that "the people have a right to bear arms for the defence of themselves and the state." The language was slightly different, but the meaning was the same. Only the citizenry, trained, armed, and organized in the militia, could be depended on to preserve republican liberties for "themselves" and to ensure the constitutional stability of "the state." Both documents linked the citizen's responsibility for the defense of the state to the threat of standing armies: standing armies were "dangerous to liberty" and must be kept "under strict subordination" to the civil government. 16
Delaware, Maryland, and North Carolina adopted similar declarations during the first year of independence. Delaware and Maryland borrowed language from Virginia's Article 13; North Carolina, following Pennsylvania's lead, declared that "the people have a right to bear arms, for the defence of the State." Vermont, though not to become a state until 1792, quoted verbatim Pennsylvania's Article 13 in its 1777 Declaration of Rights. In the same year New York incorporated into its constitution an equally clear reminder of a militia's relationship to the success of republican government. Announcing it to be "the duty of every man who enjoys the protection of society to be prepared and willing to defend it," New Yorkers proclaimed that the "militia . . . at all times . . . shall be armed and disciplined." Several other states took a similar approach. Only Massachusetts and New Hampshire joined Virginia, Pennsylvania, Delaware, Maryland, and North Carolina in adopting a separate declaration of rights." 17
John Adams, who was as important to the Massachusetts Declaration of Rights as Mason was to Virginia's, borrowed the style of the Quaker State's declaration when he drafted the Declaration of Rights that stood for ratification with the 1780 constitution. "The people," he wrote, "have a right to keep and to bear arms for the common defence." By "the people," John Adams meant the militia. "The public sword, without a hand to hold it, is but cold iron," he noted some years later, and "the hand which holds this sword is the militia of the nation." New Hampshire's 1783 Bill of Rights made the same point, declaring that "A well regulated militia is the proper, natural, and sure defence of a state." Both documents condemned standing armies and pronounced the subordination of military to civil authority, in the process underscoring the citizen militia's collective role as the protector of personal liberty and constitutional stability against ambitious tyrants and uncontrolled mobs. 18 Whether it was Massachusetts' declaration that citizens had the right "to bear arms for the common defence" or Virginia's affirmation that the militia was "the proper, natural, and safe defence of a free State," the point was the same. Republicanism depended on the existence of a sound militia. Only a strong, popularly based militia could protect liberty against domestic turmoil and tyrannical intrigue.
The language of constitutional provisions protecting conscientious objectors from military service underscores the fact that for eighteenth-century Americans "to bear arms" meant militia service. Such guarantees took the form of limitations on the individual's militia obligation. Pennsylvania provided that no "man who is conscientiously scrupulous of bearing arms" could be "compelled" to serve in the militia, though an individual was still required to meet his obligation for the state's defense by paying an "equivalent." Delaware and Vermont adopted similar language. New York's constitution limited such exemptions only to Quakers, who "from scruples of conscience, may be averse to the bearing of arms." It, too, required conscientious objections to "pay to the State such sums of money, in lieu of their personal service." New Hampshire's Bill of Rights was both more broadly conceived and more direct: "No person who is conscientiously scrupulous about the lawfulness of bearing arms, shall be compelled thereto, provided he will pay an equivalent." 19
State after state guaranteed the sovereign citizenry, described collectively as "the people" or "the militia," a role in the common defense. On the other hand, the expression "man" or "person" is used to describe individual rights such as freedom of conscience. New Hampshire's Bill of Rights, the last written during the Confederation period and as such a compendium of previous thinking on the matter, provides a case in point. It declared the importance of "a well regulated militia [to the] defence of a state" while it exempted from service any "person . . . conscientiously scrupulous about the lawfulness of bearing arms." ln other words, the individual right of conscience was asserted against the collective responsibility of the citizenry for the common defense. There could be no other logical reason for an exemption from "bearing arms" unless it applied to doing service in the militia. Indeed, the state assessed "equivalents" so that someone else could be hired to "bear arms" in the conscientious objector's place. 20
The same issues that informed the states' declarations of rightsthe importance of the militia to republican government, the threat of standing armies, the free exercise of conscience in matters of militia service, the subordination of military to civil authoritycarried over into the debate over the new federal Constitution. Federalists and Antifederalists alike agreed that the citizenry trained in arms was the only sure guarantor of liberty. Americans, unlike peoples living under arbitrary governments, were "required by Law" to train with the militia, noted an anonymous essayist in the midst of the struggle over ratification. "This is a circumstance which encreases the power and consequence of the people; and enables them to defend their rights and privileges against every invader." Antifederalists, however, were convinced that the power granted the national government threatened the militia's place in the Republic's constitutional structure. "My great objection to this government," Patrick Henry announced to Virginia's ratification convention, "is, that it does not leave us the means of defending our rights." "Have we the means of resisting disciplined armies," he continued, "when our only defence, the militia, is put into the hands of Congress?" The author of Letters from a Federalist Farmer also feared Congress's power to organize and to train the militia. A select militia of "one fifth or one eighth part of the men capable of bearing arms, . . . and those the young and ardent part of the community, possessed of but little or no property," could be formed while propertied citizens were organized in a fashion "render[ing] them of no importance." "The former," he argued, "will answer all the purposes of [a standing] army, while the latter will be defenceless." 21
Luther Martin, the outspoken Marylander who had left the Philadelphia Constitutional Convention in protest, also registered concern about the new government's military prerogatives. "Instead of guarding against a standing army, . . . which has so often and so successfully been used for the subversion of freedom," the Constitution gave "it an express and constitutional sanction." Congress's access to the states' militias troubled him too. Its authority over the militia, he warned, could be used "even [to] disarm" it. Worse, the militia might be abusedneedlessly mobilized for service in the far reaches of the Unionso that the people would be glad to see a standing army raised in its place. "When a government wishes to deprive their citizens of freedom," he noted, "it generally makes use of a standing army . . . and leaves the militia in a situation as contemptible as possible, lest they might oppose its arbitrary designs." Pennsylvania's vocal Antifederalist minority expressed similar fears, demanding for the states the power to organize, arm, and discipline the militia as well as the power to veto a congressional call for service outside a state's borders. 22
Mason's efforts to amend the Constitution provide a convenient summary of the sentiments that led ultimately to the Second Amendment. During the last days of the Philadelphia Constitutional Convention, Mason, having failed to secure a separate bill of rights, sought an explicit statement of the militia's place in the new government. He urged that the congressional power to arm to organize, and to discipline the militia be prefaced by a clause identifying that prerogative as intended better to secure "the liberties of the people . . . against the danger of standing armies in time of peace." Madison, who would later draft the Bill of Rights, supported the measure, but the convention rejected the proposal. Mason subsequently declined to endorse the Constitution. As he explained in his frequently reprinted "Objections to This Constitution of Government," the document contained "no Declaration of Rights." Specifically, it lacked a "declaration of any kind . . . against the danger of standing armies." 23
Mason became an increasingly vocal opponent of ratification during the winter of 1787-1788. On the eve of Virginia's ratification convention, he joined other Antifederalists in an effort to graft the essence of the commonwealth's Article 13along with other parts of Virginia's Bill of Rightsto the new Constitution. Declaring that the "People have a Right to keep & to bear Arms," the proposed amendment identified "a well regulated Militia [as] the proper natural and safe Defence of a free State." It also pointed to the dangers of standing armies and to the need for the "strict Subordination" of military to civil authority. A separate amendment proposed that a person "religiously scrupulous of bearing Arms" be allowed "to employ, another to bear Arms in his Stead." 24 Neither Mason nor other members of the Antifederalist caucus gathered in Richmond criticized the Constitution's failure to guarantee individual access to weapons.
For Virginia's leading Antifederalist, the issue at hand was the militia's access to arms. "The militia may be here destroyed," Mason warned Virginia's ratification convention in a lengthy speech on June 14, 1788, "by rendering them useless, by disarming them." Great Britain had entertained a scheme some forty years before "to disarm the people. . . . by totally difusing and neglecting the militia." If the new government wanted to do the same, raising a standing army in the militia's place, the states would be helpless because "congress has the exclusive right to arm them." "Why," Mason asked, "should we not provide against the danger of having our militia, our real and natural strength, destroyed?" He urged that the Constitution be amended to provide "in case the general government should neglect to arm and discipline the militia, that there should be an express declaration, that the state governments might arm and discipline them." Hence Mason backed Henry's proposal "that each State respectively shall have the Power to provide for organizing, arming and disciplining its own Militia, whensoever the Congress shall omit or neglect to provide for the Same." 25
The notion that the individual should be guaranteed access to weapons surfaced several times during the debate over the Constitution. The minority report of the Pennsylvania ratifying convention borrowed language from the state's own Declaration of Rights to declare the People's right "to bear arms for the defence of themselves and their own State or the United States." But it also claimed the right to bear arms "for the purpose of killing game," adding the proviso that "no law shall be passed for disarming the people or any of them." In Massachusetts, Samuel Adams argued that the Constitution be amended so to ensure that it "never [be] construed to authorize Congress to prevent the people of the United States who are peaceable citizens from keeping their own arms." He later withdrew the proposal, however, probably after reflecting on the recent revolt by armed citizens in Massachusetts. Finally, New Hampshire included a proposal that "Congress shall never disarm any citizen, unless such as are or have been in actual rebellion" among a series of amendments recommended for consideration by the First Congress. 26
The principles evoked by those resolutions were, however, much more akin to the classical republican understanding of the armed citizenry than appears at first glance. Bearing arms was linked to the citizenry's collective responsibility for the republic's defense. Standard warnings about the threat of standing armies and the need to ensure the subordination of military to civil authority underscored that responsibility. Certainly neither Pennsylvania's dissenters nor New Hampshire's cautious supporters of the new constitutional arrangement had moved far, if they had moved at all, beyond the eighteenth century notion that bearing arms meant militia service. That both states carefully qualified the individual's right to arms points to the same conclusion. New Hampshire recognized Congress's right to disarm individuals who "are or have been in actual rebellion." Pennsylvania's Antifederalists allowed the disarming of criminals. They also conceded that more inclusive measures could be enacted when society expected "real danger of public injury from individuals." 27 Similarly, Samuel Adams's recommendation allowed for the disarming of citizens falling outside the category of "peaceable." In other words, the order and security of society took precedence over the individual's right to arms. As in more orthodox expressions of the armed citizenry's collective relationship to the political order, constitutional stability remained the preeminent consideration.
Whatever the intention of Pennsylvania and New Hampshire, no one else followed their lead while formulating either dissenting resolutions or constitutional amendments. Jefferson's recommendation that Virginia's Constitution of 1776 guarantee that no freeman be denied the use of arms "within his own lands or tenements" represents the only other hint that Americans may have viewed bearing arms as an individual right. And, of course, that language was not incorporated into the commonwealth's constitution, probably because its framers thought that the "Militia, composed of the body of the people, trained to arms," as Mason had phrased it in Article 13 of the Declaration of Rights, more accurately stated the armed citizenry's relationship to the body politic. 28
The amendments proposed by state ratifying conventions reflect a determination to incorporate into the new Constitution many of the principles already embodied in existing declarations of rights. New York and North Carolina, for example, urged that Congress's power to raise a peacetime army be limited by requiring "the consent of two thirds" of the House and of the Senate. Maryland even suggested that a soldier's enlistment be restricted to four years in order to prevent Congress from having access to a permanent military force. But strong state militias remained the principal means to counter the tyrannical potential of the Constitution. Seven states expressed their commitment to the citizen's right to bear arms through the agency of a well-regulated militia either through proposed amendments, general statements of principle, or in the language of dissenting resolutions. Pennsylvania's Antifederalists were the first to act; Rhode Island's tardy ratification convention was the last. The fear that the militia would be purposely neglected gave rise to proposals guaranteeing that the states could organize, arm, and discipline their citizens if Congress failed to fulfill its responsibilities. A more common fear, though, was that Congress's right to call out the militia would prove detrimental to republican liberties. New Yorkers recommended that a state's militia not be compelled to serve outside its borders longer than six weeks "without the consent of the legislature thereof." Others worried that the subjection of the militia to martial law might lead to abuses. The Maryland convention believed that "all other provisions in favor of the rights of men would he vain and nugatory, if the power of subjecting all men, able to bear arms, to martial law at any moment should remain vested in Congress." Along with North Carolina, Maryland asked Congress to amend the Constitution so that the militia could be placed under martial law only "in time of war, invasion, or rebellion." 29 Finally, several state conventions stated firmly that no person "religiously scrupulous of bearing arms" should be compelled to do military service. 30
Virginia's proposed amendments, which probably most directly influenced Madison's draft of the Bill of Rights, help bring into focus the concerns that ultimately produced the Second Amendment. Indeed, the changes proposed by the commonwealth's ratifying convention nicely define the issues raised during later congressional debates. Declaring that "the people have a right to keep and bear arms," Virginians asked for constitutional recognition of the principle that "a well regulated militia, composed of the body of the people trained to arms, is the proper, natural and safe defence of a free state." That proposition addressed the fear that the new government might disarm the citizenry while raising an oppressive standing army. To reinforce the point, the convention urged that the Constitution declare that standing armies "are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit." The Constitution was also found wanting for failing to pronounce the military "in all cases" subordinate to "civil power." A separate amendment urged "That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead." At no time did anyone express concern about the right of individuals to carry weapons. 31
Madison had Virginia's recommendations in mind when, on June 8, 1789, he proposed to Congress that the Constitution be amended to provide that "The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." Reacting to the widely held fear that Congress's access to the militia might be misused, the Virginia representative proposed that that amendment be placed alongside the other limitations on legislative power listed in Article l, Section 9, of the Constitution. 32
Six weeks later, a committee of eleven, composed of Madison and representatives from each of the other states that had ratified the Constitution, began preparing a formal slate of amendments, using as a guide both Madison's recommendations and those proposed by the states. The committee revised Madison's original recommendation, stating more explicitly the armed citizenry's importance to the constitutional order. "A well regulated militia, composed of the body of the people," the new language read, "being the best security of a free state, the right of the people to keep and bear arms shall not be infringed." The use of the term people in the collective sense is unmistakable here. Madison's proposal to guarantee for individuals the free exercise of conscience in military matters was rewritten as well. The committee recommended that "no person religiously scrupulous shall he compelled to bear arms," removing even the obligation to pay an "equivalent" in lieu of military service. 33
Most members of Congress found the committee's recommendation acceptable. The doubts that were raised underscore the aim of the Second Amendment to guarantee the militia's place under the new constitutional order. Elbridge Gerry commented that only the feared "mal-administration of the Government" made such an amendment necessary. He suggested that rephrasing the proposal to read "a well regulated militia, trained to arms" might better accomplish the desired end, making it "the duty of the Government to provide this security." "Whenever Governments mean to invade the rights and liberties of the people," he reminded the House, "they always attempt to destroy the militia, in order to raise an army upon their ruins." 34
Gerry's proposal failed to receive a second and died on the House floor, but his related concern that the exemption for conscientious objectors might seriously undermine the viability of the militia received a far more sympathetic hearing. The government might declare every citizen "religiously scrupulous, and prevent them from bearing arms," leaving the citizenry defenseless against a standing army, Gerry warned. His fear no doubt struck most in the hall as a bit farfetched. Still, the amendment's failure to link freedom of conscience to the obligation to find a substitute or to pay an "equivalent" troubled many members of the House. Requiring one part of the population to provide for the defense of the other was simply "unjust," argued Georgia's James Jackson. Others believed that matters of "religious persuasion" had no place in an amendment designed to guarantee a fundamental principle of republican government. "It is extremely injudicious," warned one congressman, "to intermix matters of doubt with fundamentals." Together those concerns caused the House to come within two votes of striking the conscientious objection clause from the proposed amendment. 35
Yet another concern arose on the House floor before the amendment was passed on to the Senate. It spoke to a feeling, frequently expressed in state declarations of rights, that guaranteeing a place for the militia in the constitutional order would not alone prevent abuse of Congress's prerogative to raise standing armies. South Carolina's Aedanus Burke asked for a clause declaring that a "standing army . . . in time of peace is dangerous to public liberty, and such shall not be raised . . . without the consent of two-thirds of the members present of both Houses." He also asked for an explicit statement of the subordination of military to civil authority. The amendment received a second but was defeated after objections were raised to requiring more than a majority vote and amid complaints that debate had already been closed. Nevertheless, Burke's amendment underscores the context in which Congress debated the Second Amendment. The aim was to lay down a fundamental principle of republican government: that a well-regulated militia was the "best security of a free State." 36
Little is known about the Senate's debate of the Second Amendment, though it seems to have followed a pattern similar to that in the House. The controversial conscientious objection clause failed to get Senate approval. That body, however, joined the House in rejecting a proposal to restrict Congress's power to raise armies during peacetime. Finally, the Senate rejected an amendment to insert "for the common defence" apparently after "to bear arms"while it agreed to rephrase the nature of the militia's relationship to the Republic's security, calling it "necessary to," rather than the "best" form of, national defense. The first change no doubt reflected efforts to ensure that it was the militia that was to bear arms; its rejection reflected not the undesirability of that end but, rather, the feeling that the proposal was redundant. The decision to describe the militia as necessary to the national defense more accurately expressed the growing sentiment in America that in wartime regular soldiers also had an important role to play, even in the defense of a republic. 37
The Senate's changes were accepted by a joint conference committee of both houses, and on September 24 and September 25, 1789, the House and Senate respectively voted their approval. Unfortunately, we know little about the Second Amendment's reception in the states. No state rejected the amendment. As a statement of republican principle already commonplace in many state declarations of rights, it probably evoked little discussion. 38 If doubts were raised, and there is no evidence that they were, they probably centered on the amendment's failure to link the militia explicitly to the dangers represented by a standing army.
Whatever the issues, when Virginia ratified the Second Amendment on December 15, 1791, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed" became part of the Constitution. 39 The notion that republicanism depended on a vital militia had become part of the nation's higher law. Henceforth, Congress was prohibited from taking any action that might disarm or otherwise render the militia less effective. The Second Amendment, then, stated a basic principle of American republicanism: The body politic's ability to defend the liberties of the people and the constitutional foundation of the state against an ambitious tyrant's standing army or a manipulative demagogue's armed mob could not be infringed upon. Through the early national period, the trained militiaman remained linked to constitutional stability and to the liberty that that ensured. "A people can defend their territory, or resist an assuming government," reminded Thomas Barnard in a 1789 sermon addressing the importance of a well-disciplined militia, "but by arms." The members of the Ancient and Honorable Artillery Company in attendance could not have found his counsel surprising. Though frustrated by the performance of militia soldiers during the war years, few Americansincluding the Continental Army's principal training officer, Friedrich von Steubenquestioned the desirability of having "a perfect knowledge of the duties of a soldier engraved on the mind of every citizen." And most would have agreed that only a well-organized militia could accomplish that end. Henry Knox, also formerly among George Washington's chief advisers, believed that the "Future glory and power of the United States" depended on the establishment of a militia structure that not only trained citizens to arms but also instilled a commitment to the public good. As the last secretary at war to serve under the Articles of Confederation, he proposed such a plana plan he thought capable "of forming the manners of the rising generation on principles of republican virtue; of infusing into their minds, that the love of their country, and the knowledge of defending it, are political duties of the most indispensible nature." 40
At Washington's request, Knox in early 1790 submitted to Congress a revised version of his plan for militia reform, prefaced by remarks that reveal much about the assumptions behind the ratification of the Second Amendment. The United States, Knox wrote, had an "invaluable opportunity" to establish "such institutions as shall invigorate, exalt, and perpetuate, the great principles of freedom." The militia was one such institution: "an efficient military branch of Government can[not] be invented, with safety to the great principles of liberty, unless the same shall be formed of the people themselves, and supported by their habits and manners." Simply put, "an energetic national militia is to be regarded as the capital security of a free Republic; and not a standing army." In the first place, "every man . . . is firmly bound by the social compact to perform, personally, his proportion of military duty for the defence of the State." On a more practical level, however, the security of a free society depended on the people's possessing "a competent knowledge of the military art"a knowledge that could be "attained in the present state of society" only by establishing adequate institutions for military education. 41
Basing the "responsib[ility] for different degrees of military service" on age and physical ability, Knox proposed a classed militia intended to prepare citizens to meet both their military and their civil responsibilities. The external and internal security of the nation would be ensured by the arms of "the well-informed members of the community, actuated by the highest motives." Indeed, the citizen-soldier and the body politic would be indistinguishable under Knox's scheme. Certification of militia service would be "required as an indispensable qualification for exercising any of the rights of a free citizen." His militia plan, Knox believed, would have far-reaching consequences for America: "an energetic republican militia [would] be durably established, the invaluable principles of liberty secured and perpetuated, and a dignified national fabric erected on the solid foundation of public virtue." 42
Knox's attempt to institutionalize, through the militia, classical perceptions of the corporate character of society as well as of the importance of public virtue proved too ambitious. Many congressmen, fearing the consequences of granting the national government extensive control over local militia units, preferred instead to establish a decentralized militia system that reflected long-standing American concerns about centralized military authority. 43 Few legislators, though, questioned the values Knox's militia plan was intended to instill. "The security of a free State," to use the language of the Second Amendment, depended on an armed citizenry formed into "a well regulated Militia." Indeed, when Americans spoke of the armed citizenry's role in the preservation of liberty, they assumed a vital militia founded on classical notions of citizenship.
The debate over militia reform that followed on the heels of the Whisky Rebellion is a case in point. The militia had proved less than energetic in the face of western Pennsylvania's insurgency. More troubling was that the men who came out were not, as Jeremiah Wadsworth put it, "the militia of the law." They were but volunteers "influenced by their feelings, or by private bounties." That the insurrection had been put down missed the point. A republic must depend on its citizenry to recognize and to respond to assaults on its security. "For any Government to rely on private, individual influence, to protect it against its enemies, whether foreign or domestic," was dangerous. "The same influence," advised Wadsworth, "may be turned against the Government." William Findley, a leading Republican from Pennsylvania, also found disconcerting the militia's reputation "as an undisciplined band of substitutes, induced to undertake the service by the receipt of bounty and the expectation of plunder." The mobilized militia should reflect the body politic, each citizen "discharging [his] duty in obedience to the laws, on the same principles with a court, jury or sheriff." After all, the militia "are as much the representatives of the citizens, when they are called to support the laws of their country, as the members of Congress are their Representatives to make those laws." 44
Similar concerns surfaced with the addition of the volunteer corps to the American military establishment during the quasi war with France. In Congress, Republicans charged that drawing on "men of a particular cast "those able to arm, to clothe, and to equip themselvesto serve at the president's behest would undermine the constitutional balance guaranteed by the citizen militia. Specifically, the volunteer corps reduced military service to an expression of partisan sentiment, setting the armed force of government apart from the body politic. The militiaman, "regulated by law," defended liberty; but individuals united under arms by the passions of the moment threatened the constitutional order and the freedom it preserved. As the citizens of Louisa County, Virginia, stated the issueusing language repeated again and again by those who feared for the constitutional stability of the Republic"a well regulated and well organized militia, as immediately connecting the duties of citizens and soldiers, are the surest safeguard to the rights and liberties of the people." If the Federalists had their way, warned one "Humanus," the consequences would be "a well armed party-corps . . . on the one hand; and a neglected, difused, and un-armed militia, on the other." 45 The discussion evoked by John Randolph's recommendation in 1807 that Congress provide "by law, for arming and equipping the whole body of the militia of the United States" also sheds light on what contemporaries meant by "the right of the people to keep and bear Arms." "An armed people must necessarily be a free people," argued Randolph while calling for the systematic arming of all militiamen. Few in Congress disagreed. Indeed, most probably concurred with Pennsylvania's John Smilie when he observed that "it was undoubtedly a melancholy consideration, that a people enjoying the first privileges of freemen, had not yet availed themselves of one of their most important rights, that of arming themselves." Opposition that did arise centered on the practical question of cost and on the ideologically inspired fear that a militia armed by the federal government might be disarmed by the same authority. James Fisk predicted that "in the same proportion as the General Government furnished arms to the people, in the same proportion would their patriotic zeal to furnish themselves with arms be lessened." Nevertheless, his fear that Randolph's plan would jeopardize "the liberties of the people" emphasizes that for Americans the armed citizenry, "the people," were synonymous with "a well regulated Militia." "It [is] a correct principle," announced John Rhea of Tennessee, "that all the militia should be armed under a Republican Government. One of the objects of such a Government was, that the people should have arms in their hands." Roger Nelson of Maryland supported the plan to arm the militia because "he wished the people to be prepared at all times to repel encroachments on their rights and liberties, whether internal or external." 46
When discussions during the early national period turned to the preservation of liberty, then, classical assumptions about the citizen's responsibility to bear arms in the interest of the common good quickly came to the fore. "For a people who are free, and who mean to remain so," Jefferson reminded Congress in 1808 in language that summarized the republican principles embodied in the Second Amendment, "a well organized and armed militia is their best security." No one argued that the individual had a right to bear arms outside the ranks of the militia. To the contrary, bearing arms outside the framework of the established militia structure immediately provoked fears for the constitutional stability of the Republic. 47
Certainly there was no doubt in the mind of Justice Joseph Story, the great constitutional commentator of the period, that the Second Amendment was intended to guarantee "a well-regulated militia." "The importance of this article will scarcely be doubted by any persons who have duly reflected upon the subject." Why? Because "the militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers." Citing Sir William Blackstone's Commentaries on the Laws of England, Story noted that "the right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers." Story's only concern was that Americans had developed an indifference to the militia that he feared would lead to contempt. If that happened, "all the protection intended by this clause of our national bill of rights" would be undermined. "The importance of a well regulated militia would seem so undeniable," argued the Supreme Court justice, that "how it is practicable to keep the people duly armed without some organization, it is difficult to see." 48
The state and federal courts have seldom wavered from Story's interpretation of the Second Amendment. Thomas M. Cooley's 1884 edition of Blackstone's Commentaries on the Laws of England includes an annotation to the English jurist's comments on the right to bear arms, the annotation stating that "in the United States this right is preserved by express constitutional provisions. But it extends no further than to keep and bear those arms which are suited and proper for the general defense of the community against invasion and oppression." 49 The decision handed down by the New Jersey Supreme Court a century later is typical of what is by now nearly two centuries of constitutional opinion solidly based in the intellectual climate of the eighteenth century: "The Second Amendment, concerning the right of the people to keep and bear arms, was framed in contemplation not of individual rights but of the maintenance of the states' active, organized militias." 50
1. Niccolò Machiavelli, The Art of War (Indianapolis, 1965), 14-19; J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, 1975), 199-212. text@note1
2. Robert E. Shalhope, "The Ideological Origins of the Second Amendment," Journal of American History, 69 (Dec. 1982), 599-614. Also interpreting the Second Amendment as guaranteeing a personal right to bear arms are Robert A. Sprecher, "The Lost Amendment," American Bar Association Journal, 51 (June 1965), 554-57; Ibid. (July 1965), 665-69; and Stuart R. Hays, "The Right to Bear Arms, a Study of Judicial Misinterpretation," William and Mary Law Review 2 (no. 2, 1960), 381-406. Robert A. Sprecher and Stuart R. Hays focus narrowly on the legal and legislative history of the amendment. Arguing that the amendment supports the collective right of state militias to bear arms are Peter Buck Feller and Karl L. Gotting, "The Second Amendment: A Second Look," Northwestern University Low Review, 61 (March-April 1966), 46-70; Lucilius A. Emery, "The Constitutional Right to Keep and Bear Arms," Harvard Law Review, 28 (March 1915). 473-77; George I. Haight, "The Right to Keep and Bear Arms," Bill of Rights Review, [Fall 1941]), 31-42; and Ralph J. Rohner, "The Right to Bear Arms: A Phenomenon of Constitutional History," Catholic University of America Law Review, 16 (Sept. 1966), 53-84. Peter Beck Feller and Karl L. Gotting, Lucilius A. Emery, George I. Haight, and Ralph J. Rohner also focus their analysis on legal and constitutional issues, ignoring the ideological context out of which the Second Amendment came. text@note2
3. Shalhope. "Ideological Origins," 600. text@note3
4. S. B. Liljegren, ed., James Harrington's Oceana (Heidelberg, 1924), 9-10, 16, 34-35, 50-53, 176-77. My analysis follows closely that in Pocock, Machiavellian Moment, 386, 390-91. text@note4
5. For a detailed analysis of the debate over the militia and standing armies in eighteenth-century thought, see Lawrence Delbert Cress, Citizens in Arms: The Army and the Militia in American Society to the War of 1812 (Chapel Hill, 1982), 15-33; and Lawrence Delbert Cress, "Radical Whiggery on the Role of the Military: Ideological Roots of the American Revolutionary Militia," Journal of the History of Ideas, 40 (Jan.-March 1979), 43-60. text@note5
6. Algernon Sidney, Discourses concerning Government (London, 1698), 155-57; [John Trenchard and Walter Moyle], An Argument, Shewing, That a Standing Army Is Inconsistent with a Free Government, and Absolutely Destructive to the Constitution of the English Monarchy (London, 1697), 4-5; Andrew Fletcher, A Discourse of Government with Relation to the Militia's in The Political Works of Andrew Fletcher (London, 1737), 37-65. text@note6
7. [John Toland], The Militia Reform'd; or, An Easy Scheme of Furnishing England with a Constant Land-Force (London, 1698), 3-66; [Trenchard and Moyle], Argument, Shewing, That a Standing Army is Inconsistent with a Free Government, 4-5, 7, 17-18, 21-22. text@note7
8. Bernard Schwartz, ed., The Roots of the Bill of Rights (5 vols., New York, 1980), I, 42-43. text@note8
9. Ibid.; Emery, "Constitutional Right to Keep and Bear Arms," 473-74, text@note9
10. [John Trenchard and Thomas Gordon], Cato's Letters: or, Essays on Liberty, Civil and Religious, and Other Important Subjects (4 vols., London, 1755), I 192-94, II, 278-91; Francis Hutcheson, A System of Moral Philosophy (3 vols., London, 1755), II, 323-25. For a discussion of the influence of these and other radical Whigs in American political circles, see t'ress, "Radical Whiggery on the Role of the Military," 51-54. For an analysis of moderate Whig discussions of the militia and standing army in eighteenth-century English society, see Cress, Citizens in Arms, 25-33. text@note10
11. [James Burgh], Political Disquisitions: or, An Enquiry into Public Errors, Defects, and Abuses (3 vols., London, 1774-1775), II, 248-49, 356-57, 359-60, 378-82, 390-92, 396-98, 400, 402-05, 425, 430-31, 434-35, 439, 463-65. text@note11
12. Ibid., II, 439; [Thomas Jefferson], A Summary View of the Rights of British America (Williamsburg, ), 21; Peter Force, comp., American Archives: Fourth Series. Containing a Documentary History of the English Colonies in North America (6 vols., Washington, 1837-1846), I, 1022, 1032, II, 167-68, 399-400, III, 647-48; H. Niles, Principles and Acts of the Revolution in America: or, An Attempt to Collect and Preserve Some of the Speeches, Orations, and Proceedings (Baltimore, 1822), 108-10, 240, 277-78; Robert A. Rutland, ed., The Papers of George Mason, 1725-1792 (3 vols., Chapel Hill, 1970), I, 210-11, 212, 215-16; Novanglis [John Adams] "To the Inhabitants of the Colony of Massachusetts-Bay," Boston Gazette, Feb. 6, 1775; Oliver Wolcott to Samuel Lyman, March 16, 1776, in Edmund C. Barnett, ed., Letters of Members of the Continental Congress (8 vols., Washington, 1921-1936), I, 397; Cress, "Radical Whiggery on the Role of the Military," 56-60. text@note12
13. T. Pownall, The Exercise for the Militia of the Province of the Massachusetts-Bay, by Order of His Excellency. Prefatory and Explanatory Instructions to the Officers and Men, in The Remembrances, or Impartial Repository of Public Events (17 vols., London, 1775-1784), VIII, 91. text@note13
14. Simeon Howard, A Sermon Preached to the Ancient and Honorable Artillery-Company, in Boston. New-Englond, June 7th. 1773 (Boston, 1773), 22-26, 40-41; Samuel Stillman, A Sermon Preached to the Ancient and Honornble Artillery Company in Boston, New-England, June 4, 1770 (Boston, 1770), 28-30; Niles, Principles and Acts of the Revolution in America, 17-20; Jeremy Belknap, A Sermon on Military Duty, Preached at Dover, November 10, 1772 (Salem, Mass. 1773), 7- 15; Elisha Fish, The Art of War Lawful, and Necessary for a Christian People, Considered and Enforced (Boston, 1774), 3-17; Force, comp., American Archives, III, 219-21; Daniel Shute, A Sermon Preached to the Ancient and Honorable Artillery Company in Boston, New-England, June l, 1767 (Boston, 1767), 18-29; Boston Gazette, Jan. 27, 1772. For an analysis of the standing army and militia in the minds ot American leaders on the eve of independence, see Cress, Citizens in Arms, 34-50. text@note14
15. Howard, Sermon Preached, 28-29, 40-41; Essex Gazette, Jan. 31, 1769; Josiah Quincy, Jr., Observations on the Act of Parliament Commonly Called the Boston Port-Bill; with Thoughts on Civil Society ond Standing Armies (Boston, 1774), 41-43; Jonas Clark, The Importance of Military Skill, Measures for Defence and a Martial Spirit, in a Time of Peace (Boston, 1768), 14-23; John Lathrop, A Sermon Preached to the Ancient and Honorable Artillery-Company in Boston, New England, June 6th 1774 (Boston, 1774), 34-39 text@note15
16. Schwartz, ed., Roots of the Bill of Rights, II, 231, 235, 266. text@note16
17. Ibid., II, 278, 282, 287, 312, 324. For a summary of state constitutional provisions bearing on the militia and its relationship to civil authority, see Cress, Citizens in Arms, 60-62. text@note17
18. Schwartz, ed., Roots of the Bill of Rights, II, 342, 378. John Adams quoted James Harrington's Commonwealth of Oceana in A Defence of the Constitutions of Government of the United States of America. Charles Francis Adams, ed., The Works of John Adams, Second President of the United States (10 vols., Boston, 1850-1856), IV, 430. text@note18
19. Schwartz, ed., Roots of the Bill of Rights, II, 265, 277, 312, 323, 377. text@note19
20. Ibid., 312, 324, 377, 378. text@note20
21. Connecticut Courant, Jan. 7, 1788; Alexander Hamilton, "The Federalist No. 29," in The Federalist, ed. Jacob E. Cooke (Middletown, Conn., 1961) 184-85; James Madison, "The Federalist No. 46," in ibid., 320-22; Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, Held in the Year 1788, and Which Finally Ratified the Constitution of the United States (Boston, 1856), 349-50; [Noah Webster], An Examination into the Lending Principles of the Federal Constitution Proposed by the Late Convention Held at Philadephia, in Paul Leicester Ford, ed., Pamphlets on the Constitution of the United States, Published during Its Discussion by the People, 1787-1788 (Brooklyn, 1888), 56-57; [ Tench Coxe], An Examination of the Constitution for the United States of America, in ibid., 151; Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelpltia in 1787 (5 vols., Phiiladelphia, 1836-1845), III, 47-48, 52; Cecelia M. Kenyon, ed., The Antifederalists (Indianapolis, 1966), 228-29. text@note21
22. Paul Leicester Ford, ed., Essays on the Constitution of the United States, Published during Its Discussion by the People. 1787-1788 (Brooklyn, 1892), 358-59; Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols., New Haven, 1937), III, 207-8, 285; Elliot, ed., Debates in the Several State Conventions, I, 371-72, II, 406, 545-46, 552-53; Kenyon, ed., Antifederalists, 22-23, 36-37, 57-58, 361-62; John Bach McMaster and Frederick D. Stone, eds., Pennsylvania and the Federal Constitution, 1787-1788 (Philadelphia, 1888), 180-82, 502. text@note22
23. Notes of Debates in the Federal Cnnvention of 1787, Reported by James Madison (Athens, Ohio, 1966), 630, 639-40; Rutland, ed., Papers of George Mason, III, 991-93. text@note23
24. Rutland, ed., Papers of George Mason, III, 1070-71. Concern over the Constitution's failure to protect conscientious objectors was common in Antifederalist tracts. Typical in charging that "men conscienciously scrupulous of bearing arms [are] made liable to perform military duty" was a manifesto from Albany County, N.Y., that appeared in the New York Journal. Kenyon, ed., Antifederalists, 362. text@note24
25. Rutland, ed., Papers of George Mason, III, 1074-75, 1079-81, 1117. text@note25
26. Kenyon, ed., Antifederalists, 36; William V. Wells, The Life and Public Services of Samuel Adams, Being a Narrative of his Acts and Opinions, and of His Agency in Producing and Forwarding the American Revolution (3 vols., Boston, 1865), III, 267; Elliot, ed., Debates in the Several State Conventions, I, 326, II, 162. text@note26
27. Kenyon, ed., Antifederalists, 36. text@note27
28. Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (20 vols., Princeton), 1950-), I, 344, 353,363. text@note28
29. Elliot, ed., Debates in the Several State Conventions, I, 328, 330-31, 334-35, II, 550-52, III, 659-60, IV, 214-47; Kenyon, ed., Antifederalists, 36-37. For the amendments proposed by New Hampshire, see Bernard Schwartz, ed., The Bill of Rights: A Docomentary History (2 vols., New York, 1971), II, 760-61. text@note29
30. Kenyon, ed., Antifederalists, 35, 37; Elliot, ed., Debates in the Several State Conventions, I, 335, II, 553, III, 659, IV, 244. text@note30
31. Elliot, ed., Debates in the Several State Conventions, III, 659-60. text@note31
32. Annals of Congress, 1 Cong., 1 sess., June 8, 1789, p. 451. text@note32
33. Ibid. , July 21, 1789, pp. 685-91; ibid., Aug. 17, 1789, p. 778. For the Committee of Eleven Report an Proposed Amendments, July 28, 1789, see Schwartz, ed., Roots of the Bill of Rights, V, illustration following p. 1014. text@note33
34. Annals of Congress, 1 Cong., 1 sess., Aug. 17, 1789, pp. 778-80. text@note34
35. Ibid. text@note35
36. Ibid., 780-81. text@note36
37. Schwartz, ed., Roots of The Bill of Rights V, 1149, 1152, 1153-54. text@note37
38. Annals of Congress, 1 Cong., 1 sess., Sept. 24, 1789, p. 948; ibid., Sept 25, 1789, p. 90; Schwartz, ed., Roots of the Bill of Rights, V, 1193-1203. text@note38
39. Schwartz, ed., Roots of the Bill of Rights, V, 1202. text@note39
40. Thomas Barnard, A Sermon, Preached at the Request of the Ancient and Honourable Artillery Company, in Boston. June l, 1789 (Boston, 1789), 2a-26; Friedrich von Steuben, A Letter on the Subject of an Established Militia, and Military Arrangements, Addressed to the Inhabitants of the United States (New York, 1784), 14; [Henry Knox], A Plan for the General Arrangement of the Militia of the United States (New York, 1786), 1-6. text@note40
41. Annals of Congress, 1 Cong., 2 sess., Jan. 18, 1790, appendix, pp. 2088-2107. text@note41
42. Ibid. text@note42
43. For the text of the Militia act of 1792, see ibid., 2 Cong., 1 sess., May 8, 1792, appendix, pp. 1392-95. For conflicting assessments of its significance, see Cress, Citizens in Arms, 115-21; and Richard H. Kohn, Eagle and Sword: The Federalists and the Creation of the Military Establishment in America, 1783-1802 (New York, 1975), 128-38. text@note43
44. Annals of Congress, 3 Cong., 2 sess., Feb. 12, 1795, pp. 1217-18; Philadelphia Aurora, Sept. 4, Sept. 25, Sept. 26, Sept. 27, Oct. 2, Oct. 20, Nov, 24, 1794; Wlliam Findley, History of the Insurrection, in the Four Western Counties of Pennsylvania (Philadelphia, 1796), 153-68. text@note44
45. Annals of Congress, 5 Cong., 2 sess., May 16, 1798, pp. 1725-31; Philadelphia Aurora, Dec. 6, 1798, Feb. 11, 1799, March 7, July 1, Sept. 6, 1800; Boston Independent Chronicle, Oct. 25, Nov. 5, Dec. 10, 1798; Joseph B. Varnum, An Address, Delivered to the Third Division of Massachusetts, at a Review, on the Plans of Concord, 27th August, 1800 (Cambridge, Mass., 1800), 20-23. See also a song celebrating Republican election victories in Pennsylvania. Philadelphia Anrora Nov. 9, 1799. text@note45
46. Annals of Congress, 10 Cong., 1 sess., Dec. 1, 1807, pp. 1007-05; ibid., Dec. 3, 1807, pp. 1019-56; ibid., April 2, 1808, appendix, p. 2849; ibid., April 9, 1808, pp. 2O66-67; ibid., April 16, April 18, 1808, pp. 2175-97. For discussions concerning the arming of the militia in the 1790s, see ibid., 1 Cong., 3 sess., Dec. 16, Dec. 17, 1790, pp. 1804-26; ibid., 5 Cong., 2 sess., June 14, 1798, pp. 1927-33; ibid., July 6, 1798, appendix, pp. 3752-53. text@note46
47. James D. Richardson, A Compilation of the Papers of the Presidents, 1789-1897 (10 vols., Washington, 1896-1899), I, 454-55. For an analysis of thinking concerning the militia and the preservation of republicanism during the administrations of Thomas Jefferson and James Madison, see Cress, Citizens in Arms, 155-66. text@note47
48. Joseph Story, Commentaries on the Constitution of the United States; with a Preliminary Review of the Constitutional History of the Colonies and States, before the Adoption of the Constitution (3 vols., Boston, 1833), III, 746-47. James Kent does not mention the right to bear arms among the individual rights guaranteed in English tradition and American law. James Kent, Commentaries on American Law (4 vols., New York, 1826-1830), II, 1-13. text@note48
49. Sir William Blackstone, Commentaries on the Laws of England, ed. Thomas M. Cooley (2 vols., Chicago, 1884), I, 143n. See also Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union (Boston, 1868), 350. text@note49
50. Burton v. Sills, 28 A.L.R. 3d 829 (1968). Important cases dealing with the meaning of the Second Amendment during the past two hundred years include English v. State, 35 Texas 473 (1871-72); Andrews v. State, 13 Heisk. 165 (Tenn. 1871); U.S. v. Cruikshank, 23 L. Ed. 588 (1875); Presser v. Illinois, 6 S. Ct. 580 (1886); Robertson et al. v. Baldwin, 17 S. Ct. 326 (1897); Strickland v. State, 72 SE 260 (Ga. 1911); U.S. v. Miller et al., 59 S. Ct. 816 (1939); U.S. v. Tot, 131 F.2d 261 (1942). Among rare state court decisions guaranteeing individuals the constitutional right to own weapons are Bliss v. Commonwealth, 2 Littell 90 (Ky. 1822); and Nunn v. State, 1 Kelly 243 (Ga. 1846). text@note50
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