|
|
|
FORUM: COMMENT
Arms and the Man: What Did the Right to "Keep" Arms Mean in the Early Republic?
DAVID THOMAS KONIG
| Just as Virgil linked "arms and the man" in his epic history of Rome's origins,1 Americans have linked the bearing of arms with their own national origins. Regardless of other uses to which his image has been put, the Minuteman who stands guard at Concord reminds us that he stood his ground in 1775 to stop British regulars from seizing assembled weapons at Concord and disarming the Middlesex County militia. Robert Churchill provides us with an entertaining anecdote of a young man to illustrate his claim that such men actually believed that they were protecting their personal right to keep and bear arms. Asserting that he had become ill, the militiaman was "skedaddling home" after his company's engagement with British regulars at Concord in 1775. Though his captain's wife told him that "you must not take your gun with you," he retorted, "Yes, I shall." His refusal to yield his gun, explains Churchill, "transcended its importance in allowing him to meet his communal obligation. The gun was his, and he believed he had a right to keep it."2 But this anecdote, though charming, demands closer examination. Like much in Churchill's essay, it reveals that items or statements taken out of context can be misinterpreted and misleading. |
1
|
|
Though the militiaman justified his flight from battle with the excuse of illness, he never invoked any legal "right to keep" his firearm distinct from any natural right of self-preservation. Nevertheless, Churchill uses the Concordian's panicked remark as illustrating how "American law recognized a zone of immunity surrounding the privately owned guns of citizens."3 We would do well to investigate just what the "keeping" of arms meant in the Early Republic, for we should not allow this supposedly legalistic young militiaman to have the last word. He was not expressing an authoritative legal opinion specific to firearms. More to the point was the lament of Lieutenant Joseph Hosmer about what had happened that day. Hosmer complained that the militia's scattering had turned victory into an uncoordinated fracas. Of the men seen dispersing to save their own skins or wreak vengeance on the intruders, Hosmer ruefully observed, "Every man was his own commander."4 Far from condoning it, a standard military manual of the period—a text written by a British officer but published in Philadelphia—addressed such behavior and assailed it as among "those panics and disorders, to which the frailty of the human heart often drives the soldier...."5 Context—transatlantic, provincial, and local—matters when we seek to come to terms with the law. It is a task not made any easier by the contradictions within Churchill's argument, by the way he states the strong position of his argument and then qualifies it into a much weaker one, or by his stating claims that are not supported by the footnoted materials. |
2
|
|
In the time since I saw and commented on an early version of this article,6 Churchill has expanded his study of gun laws with a much more extensive examination of post-Revolutionary legislation to reinforce his argument about the right to keep firearms unrelated to any collective military service. Central to this argument is the claim that "most" post-Revolutionary states "repudiated the military power to seize the privately owned firearms of their inhabitants. These limits on colonial and early state regulation of arms ownership outlined a significant zone of immunity around the private arms of the individual citizen."7 Though he has made a solid contribution to our understanding of the pervasive extent of colonial arms regulation through the police power, his argument concerning post-Revolutionary matters remains unpersuasive, especially when stated in its strong version. Without putting too fine a point on Churchill's language, his use of "repudiated" and "limits" expresses an intent as well as a constitutionally charged implication that the change reflected ideas about legally recognized rights—what he attributes to Tench Coxe as a "legal immunity surrounding the keeping of arms."8 This strong version of his thesis is argued more strongly by Churchill's insistence that this protection was unique among other property rights. |
3
|
|
Though strongly worded, however, these points are only weakly supported. The first problem is that they rely heavily on reasoning from negative evidence: though he demonstrates the absence of post-Revolutionary weapons impressment laws, such silence did not constitute a "repudiation" of a previous practice.9 To be sure, without further context or other explanatory evidence, it might be so interpreted. Ample context and evidence exist, however, to suggest a plausible alternative explanation for such silence: namely, states no longer had any need to impress arms, and their inaction on impressments reflected not a "repudiation" but rather a turn to other methods of obtaining militia weapons. Pennsylvania, for example, did not impress weapons for the militia service in the years Churchill cites after the Revolution,10 but not because of any "zone of immunity" established around them. Though state law required militiamen to appear at call-up with their own weapons, the legislature already had made provision for those who could not procure their own firearms. Like other states, it had established repositories for the collection and storage of firearms purchased at public expense.11 |
4
|
|
This shift was driven by the events and subsequent changed attitudes after the end of fighting in 1781—what Jack Rakove calls the "'lessons of experience' or inferences and attitudes that participants might have drawn and derived from their own involvement in events."12 Ignoring the history of the early national militia, which demonstrated the shortage of weapons among the militia-eligible population as well as the need for a standardized uniformity of weaponry, Churchill overlooks the fact that many states now provided the weapons needed for militia service. With Independence the "universal militia" ideal existed as no more than that—an ideal. Churchill's claim that historians have "underappreciated the distinctiveness of the universal militia as a colonial institution that had no corollary in the post-medieval British experience"13 therefore carries little interpretive weight for his argument, because after the Revolution many state militias came to replicate that British experience. As occurred with the British militia tradition he dismisses, Americans who did not wish to serve could avoid service. Pennsylvania explicitly allowed "any person called to perform a tour of duty to find a sufficient substitute" and established arsenals from which publicly purchased "arms shall not be taken from their place of deposit except on the days appointed by this act, for the exercise and discipline of the militia, or when they shall be called into actual service."14 Though not directly hiring "substitutes," citizens could—and did—effectively force substitutes to serve in their places by choosing to pay fines for nonappearance for duty.15 Similarly, just as "[t]he Crown provided arms and uniforms," Massachusetts in 1793 enacted that for any militiaman "unable to arm and equip himself" towns were required to furnish "arms and equipments, which shall remain the property of the town."16 Militiamen in Danvers, for example, received their weapons when they arrived at training day and returned them when they left at the end of the day.17 Americans were, indeed, "entitled and accustomed" to keeping and bearing arms, as Tench Coxe said, "for the powers of the sword are in the hands of the yeomanry of America from 16 to 60." But we must remember how he explained that it was "[t]he militia of these free commonwealths" that were so "entitled and accustomed."18 Like Coxe, Congress viewed such "accustomed" right as a militia one: its Uniform Militia Act of 1792 acknowledged existing militias that would not be incorporated into the uniform militia: they were to "retain their accustomed privileges, subject, nevertheless, to all other duties required by this act, in like manner with the other militia."19 |
5
|
|
Contradicting his rejection of the "new paradigm" offered to describe an individual right to keep and bear arms as participation in the civic act of militia service, Churchill provides ample information to support what he rejects. Though he denies that keeping arms was a "right carried out within a public organization," he concludes the same paragraph by stating what is very close to the model he denies: "The keeping of all such 'firelocks' by individual citizens was a private act rendered immune from state interference because it facilitated the public act of collective self-defense."20 |
6
|
|
The story of the collapse of the enrolled militia after the Revolution is a commonplace of the historiography of the early republic,21 yet its meaning for the way Americans thought about keeping and bearing arms is absent from Churchill's analysis. With Independence, questions and concerns were raised about government provision of militia weapons, but they concerned the role of the federal government as supplier. It was, that is, a states' rights question and not a matter of keeping personal arms. The Uniform Militia Act of 1792 required all enrolled militiamen to provide their own weapons,22 but the futility of such a requirement quickly became obvious. In 1798, therefore, Congress enacted that the federal government should supply "thirty thousand stand of arms" to be deposited for sale to state governments; if unsold, they were to remain available for delivery to the federalized militia when needed.23 The states recognized the scarcity of private weapons—indeed, Churchill acknowledges that almost a third of militiamen came to muster without weapons24—but they feared entrusting the federal government with the responsibility of being the sole source of firearms, and many resorted to building and stocking their own armories.25 |
7
|
|
But a second major point he presents is of more dubious validity: the nonmilitary keeping of weapons that Churchill insists continued as an obligation after the Revolution. The newly independent state governments, he argues, required even those men not enrolled in the militia to "keep" arms: "While some states limited this individual duty of keeping arms to those subject to militia training, others did not."26 Unfortunately, the evidence Churchill adduces does not at all refer to states, but rather to colonies; the latest statute cited dates from 1762.27 After presenting other colonial statutes to illustrate how "[t]he language of 'keeping arms,' then, had a colloquial meaning that applied to individuals outside of the context of militia service," he quotes a Pennsylvania newspaper in 1747 illustrating the connection between keeping arms and military use, urging "those who on account of their age or infirmities ought to be excused from the common exercises" to "keep arms and ammunition in their houses, that when occasion calls, they may either use them if they can or lend them to those who happen to be unprovided. This language of keeping arms continued into the early national period, though it was not incorporated into the federal militia act of 1792."28 |
8
|
|
I have quoted this passage in full because it asserts the continuation of colonial "language" as the basis for a legally recognized post-Revolutionary right. But what "language" "continued into the early national period"? If he means language that required those not enrolled in the militias to keep arms for collective action "when occasion calls," he provides no evidence of such in any post-Revolutionary statutes. If, as seems more likely from the topic sentence of the paragraph and his general argument about the keeping of arms unrelated to militia service in the early republic, his evidence likewise supports nothing of the sort. The "post-colonial examples of this usage," cited in his note 27, all pertain to militia matters—not a single post-Revolutionary example he cites imposes this obligation on those exempted from service or on those not enrolled. To the contrary, every citation adduced clearly attaches the obligation of keeping arms to those enrolled in the militia. The word "keep," in fact, is in every instance a militia matter.29 |
9
|
|
Despite Churchill's denial, owning and keeping firearms did not constitute any special constitutional or legal "zone of immunity" in the period examined here, when individuals possessed a common law right to own anything, even other human beings. To have questioned the right to own and keep weapons would have defied all logic and law and certainly would have intruded on any right reserved to the states by the federal constitution. Americans of the colonial and early national periods regarded the right to own firearms as no different from—and certainly as no less than—the other property rights they defended zealously, and the language they used in its defense demonstrates this longstanding common law concept of property rights rather than any unique "zone of immunity" for firearms. State control over a militiaman's firearms was not challenged as a violation of any special "zone of immunity," that is, but rather as a taking of his property controlled by the requirement of compensation. It was for this reason, for example, that a Pennsylvania militia colonel in 1792 insisted that those of his men using their own weapons were entitled to additional pay for such use,30 or the belief that the cost of purchasing cartridges expended by volunteer companies in their drills should be paid by the state.31 |
10
|
|
The ideal of every man supplying his own weapon thus involved matters other than a right to keep arms unrelated to militia service. To understand this distinction requires, however, that we undertake Jack Rakove's injunction to do the "laborious task" of immersing ourselves in the policy debates of the era rather than relying on statutes32—and in this case, inferences drawn from statutory silences. If we do so, we find one stated reason for the demand that militiamen provide their own weapons to be the belief that such a policy constituted a tax to provide weapons for those who failed to supply their own. In 1810, objecting to the distribution of federally purchased firearms directly to volunteer militiamen, Congressman Samuel Dana challenged the practice as a direct tax on those who already had purchased their own weapons for militia service, and who were thereby being "required to contribute property; which contribution being unequally levied was so far not conformable to the spirit of the Constitution." No unique "right" concerning a "zone of immunity" was involved here, but rather the constitutional requirement that direct taxes be apportioned according to population.33 Congressman Timothy Pitkin protested that such distribution served to "tax them to purchase arms for those who had neglected their duty" of providing their own weapons.34 Even Ezekiel Bacon, cited by Churchill for his insistence on the individual obligation to keep arms for militia service, opposed federal financing of state arms purchases on the principle that Massachusetts should not be paying for other states' militias.35 Alternatively, it was argued that requiring all men to provide their own weapons raised legal problems, and that the Second Amendment required the federal government to provide arms to all. According to a writer in The National Intelligencer and Washington Advertiser, the individual obligation to provide weapons "operates very unequally, as it lays the same burden on the poor as on the rich—it is a kind of poll tax."36 |
11
|
|
Churchill concludes by qualifying and weakening his thesis so severely that little remains of its stated "strong" version. He finds "within the constitutional right to keep and bear arms an individual citizen's right to own guns, grounded in an American rejection of English precedent," but he also admits that "[t]here is little evidence that the framers of the Second Amendment were concerned with recognizing an individual right to keep arms." What distinction can be made between these two rights? Churchill's answer is that "[a]n interpretation of the Second Amendment as securing in part an individual right to keep arms was contemporaneous with the amendment's framing." Well might we ask what it means that a right was secured "in part," and what its legal significance was as "contemporaneous" with the Second Amendment. Many competing notions of rights existed at the nation's founding, with many competing versions of rights "contemporaneous" with the framing of the Bill of Rights. What it meant to "keep" arms meant different things to different people in different places, and Churchill is correct that we lack sufficient evidence to know what popular notions of the Second Amendment swirled around its ratified constitutional text, and to know how widely any such alternative ideas were held. Churchill is surely going well beyond his evidence, however, when he claims his impressions of statutory silences to be "authoritative" in the years he examines. We must be careful when we assert what "keeping arms" meant as a "legal" or "constitutional right." We must be careful, that is, to distinguish between what a political community chose to elevate to the level of a legal or constitutional protection and what it did not. Like his militiaman, Churchill confuses the legal and the constitutional with the "colloquial" or with unenacted tenets of natural law. Such popular ideas must be given their due, of course, for they provide valuable insight into the popular legal culture of the times and can illuminate the boundaries of the law. When we make such distinctions rigorously, and analyze them with full attention to their context, we will have made great strides in understanding what it meant to "keep" arms in the Early Republic. |
12
|
|
David T. Konig is a professor in the department of history and professor in the school of law at Washington University in St. Louis <dtkonig@artsci.wustl.edu>.
Notes
1. "Arma virumque cano" ("I sing of arms and the man"), Virgil, Aeneid, line 1.
2. Robert H. Churchill, "Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment," Law and History Review 25 (2007): 139–40, citing Robert A. Gross, The Minutemen and Their World (New York: Hill and Wang, 1976), 126.
3. Churchill, "Gun Regulation," 142.
4. Gross, Minutemen, 126. The commonplace distinction between a state of nature and civil society is another context that we cannot ignore despite Churchill's argument that the militiaman's statement asserted "a right to keep arms." Compare Locke's distinction between a state of nature and that of political society: in the former, "everyone in that state being both Judge and Executioner of the Law of Nature, men being partial to themselves, Passion and Revenge is very apt to carry them too far, and with too much heat, in their own cases; as well as negligence, and unconcernedness, to make them too remiss, in other mens." John Locke, The Second Treatise of Government. An Essay Concerning the True Original, Extent, and End of Civil Government, sec. 125, in Two Treatises of Government, ed. Peter Laslett (New York: Cambridge University Press, 1963), 396.
5. Thomas Simes, The Military Guide for Young Officers (Philadelphia, 1776), cited by Allen French, The Day of Concord and Lexington (Boston: Little, Brown, 1925), 197.
6. "Gun Regulation in Early America: Taking Another Look at the Legal Context of the Second Amendment" (10 September 2003), comments for which I am acknowledged in the present article.
7. Churchill, "Gun Regulation," 161.
8. Ibid., 171.
9. For "repudiation," see Churchill, "Gun Regulation," 155. The power to impress arms for militia use, moreover, can hardly be called an exercise of "emergency military powers in a manner that effectively disarmed citizens." Ibid. The term "disarm" is misapplied if used to describe the mobilization of resources against external enemies; it was a means for the sovereign to suppress internal opposition, such as Roman Catholics or Jacobites in Britain, or Tories in the new republic.
10. Churchill, "Gun Regulation," 154.
11. An Act for the Regulation of the Militia of the Commonwealth of Pennsylvania" (1807), ch. MMDCCCXLII, secs. 15, 37.
12. Jack N. Rakove, "Words, Deeds, and Guns: Arming America and the Second Amendment," William and Mary Quarterly 59 (2002): 208.
13. Churchill, "Gun Regulation," 143.
14. An Act for the Regulation of the Militia of the Commonwealth of Pennsylvania" (1807), chap. MMDCCCXLII, sec. 38.
15. John K. Mahon, The American Militia: Decade of Decision, 1789–1800 (Gainesville: University of Florida Press, 1960), 47–48.
16. Report to Congress, 1794, Annals of Congress, House of Representatives, 11th Congress, 2nd Session, 70. The report also noted that North Carolina had the same procedure. Connecticut did the same in 1782, specifying that "all Arms and Accoutrements thus provided, shall be the property of such Town" paying for them. Acts and Laws (1782), p. 592.
17. Mahon, American Militia, 42.
18. Churchill, "Gun Regulation," 144.
19. 2nd Congress, 2nd Session, ch. 33 (1792), sec. 11.
20. Churchill, "Gun Regulation," 167.
21. Mahon, American Militia, 42. See also Marcus Cunliffe, Soldiers and Civilians: The Martial Spirit in America, 1775–1865 (Boston: Little, Brown, 1968); William H. Riker, Soldiers of the States: The Role of the National Guard in American Democracy (Washington, D.C.: Public Affairs, 1957), 28–30.
22. 2nd Congress, 2nd Session, ch. 33 (1792).
23. 5th Congress, 2nd Session, ch. 66 (1798). Congress acted again in 1808. 10th Congress, Session 1, chap. 55 (1808).
24. "Militia returns from the era of the American Revolution and from 1810 show that over two-thirds of northern militiamen came armed to muster." Churchill, "Gun Regulation," 147.
25. Vermont and South Carolina had to send purchasing agents to Europe in search of guns. Cunliffe, Soldiers and Civilians, 185. The Connecticut Journal observed that Virginia had stored arms in its own armory "because it was proper for the state of Virginia to keep in her possession the means of arming the militia, rather than depend for her supply on contracts which the U.S. might stop." Virginia had begun appropriating funds for its militia in 1797. Connecticut Journal, 18 February 1817, 2.
26. Churchill, "Gun Regulation," 148.
27. Sources cited in ibid., n. 25.
28. Ibid., 149 (emphasis added).
29. See ibid., 149, n. 27, and references cited. Two sources adduced are speeches in Congress urging "the people" to "keep their arms in their hands" to maintain the independence of the nation (Rhea) and supporting measures "that every citizen shall furnish and constantly keep at his own expense those arms which might be necessary for his defence against external force and internal oppression" (Bacon). New Jersey's law refers to "Ammunition to be kept by each Man" in the militia. Those of Connecticut (1782), Virginia (1784), Massachusetts (1793), and Vermont (1797) use "keep" in this same way, in militia statutes.
30. "Col. John Wilkins to Col. Clement Biddle," Pittsburgh, 21 December 1792, Pennsylvania Archives, ser. 2, vol. 4 (1876), 742.
31. W. A. Newman Dorland, "The Second Troop Philadelphia City Cavalry," Pennsylvania Magazine of History and Biography 45 (1921): 371.
32. Rakove, "Words, Deeds, and Guns," 208.
33. Annals of Congress, 11th Congress, 2nd session (March 1810), 1571. Dana was referring to Article I, Section 9, Clause 4 of the federal Constitution.
34. Annals of Congress, 11th Congress, 2nd Session (March 1810), 1567.
35. Bacon's speech of 5 December 1808 was published in The Pittsfield Sun; or, Republican Monitor, 9 January 1809.
36. The National Intelligencer and Washington Advertiser, 8 February 1812. From this association with a poll tax, the "civic" nature of bearing arms might be inferred as well.
|
Content in the History Cooperative database is intended for personal, noncommercial use only. You may not reproduce, publish, distribute, transmit, participate in the transfer or sale of, modify, create derivative works from, display, or in any way exploit the History Cooperative database in whole or in part without the written permission of the copyright holder.
|