The Founders' Second Amendment
Page 15
For quartering large bodies of armed troops among us:
For protecting them, by mock trial, from punishment for any murders which they should commit on the inhabitants of these states:
For cutting off our trade with all parts of the world:
For imposing taxes on us without our consent:
For depriving us in many cases, of the benefits of trial by jury. . . :
For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated government here, by declaring us out of his protection and waging war against us.
He has plundered our seas, ravaged our coasts, burned our towns, and destroyed the lives of our people.
He is at this time transporting large armies of foreign mercenaries to complete the works of death, desolation and tyranny, already begun with circumstances of cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the head of a civilised nation.
The above charges mentioned only two subjects that would later be addressed in the Bill of Rights—the Third Amendment’s proscription on quartering troops and the Sixth and Seventh Amendments’ guarantees of trial by jury. Although the Crown had violated most or all of the rights that would later be articulated in the Bill of Rights, the Declaration did not make specific reference to the rights to freedom of religion, speech, and press; to keep and bear arms; and against unreasonable search and seizure.2 Instead of accusing the Crown of violation of the right to petition, the Declaration complained that the petitions had not been granted: “In every stage of these oppressions we have petitioned for redress in the most humble terms: our repeated petitions have been answered only by repeated injury.” In any event, the Declaration did not purport to detail every injury but dwelt on political and military transgressions being committed so as to justify the independence of the colonies.
As the Declaration concluded: “A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.” It therefore declared “in the name, and by the authority of the good people of these colonies," that “these united colonies are, and of right ought to be free and independent states; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain, is and ought to be totally dissolved. . . . ”
This right to overthrow the established government that had become tyrannical was not the right of an individual acting alone. The right was asserted by a legislative body representing the people of the several colonies, which assumed all the powers of independent states. Underlying this political theory was the notion that individuals had a right to keep and bear arms, and that these arms could rightly be used to throw off despotism when the decision to do so attained widespread recognition as legitimate. Force of arms was the only method available to achieve independence, and that is why the Declaration closed with the dauntless words: “with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honour.”
Thomas Jefferson, penman of the Declaration of Independence, wrote that it was based in part on “the elementary books of public right, as Aristotle, Cicero, Locke, Sidney & c.”3 An armed populace was the cornerstone of the ideal polity in the thought of these classical philosophers. Aristotle denounced a social order where “the farmers have no arms . . . mak[ing] them virtually the servants of those who do possess arms.”4 Cicero wrote that “a man who has used arms in self-defense is not regarded as having carried them with a homicidal aim.”5 According to John Locke, the people have not “disarmed themselves, and armed [a legislator], to make prey of them when he pleases.”6 In a popular government, argued Algernon Sidney, “every man is armed and disciplined.”7
When independence was declared, great festivities took place throughout the states. Related symbolic expression included the firing of thirteen musket shots, representing the thirteen states, and the desecration of pictures of George III and other symbols of the British rule.8 Images of the king were stomped, burned, and shot.
The great promise of the Declaration of Independence, with its fine philosophical phraseology and the euphoria it entailed, would soon give way to suffering, defeat, and the occasional victory. In addition to the war being waged between combatants, the British continued to confiscate arms, particularly from those considered disloyal. The pro-British New York Governor William Tryon decreed on December 2, 1776, as to such persons, “That all offensive arms, indiscriminately, be forthwith collected, in each manor, township and precinct, as soon as possible, to deliver them up at head-quarters, to the Commander-in-chief of the King’s troops.” Such former patriots must then serve the Crown: “That those who have been active in the rebellion, if fit to bear arms, forthwith to wait on the Gen’l, and enlist in the regular service for the term of the present war; if not fit to bear arms, to send one of their sons to enlist in their stead; if no sons, then to perform some unasked signal service, that may merit the protection of Gov’t.”9
With General Washington’s army withdrawing through New Jersey, Thomas Paine wrote The American Crisis on a drumhead by campfire. When the pamphlet appeared under Paine’s pseudonym “Common Sense” on December 23, 1776, despair filled the ranks.10 Paine began with these immortal words:
These are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph.11
The Americans had not wanted a war, but force must be used to defend against evil. While Paine believed that a strong army was now needed, he praised the contribution to the cause by “the temporary defence of a wellmeaning militia,” which “set bounds to the progress of the enemy. . . . ” “I always considered militia as the best troops in the world for a sudden exertion, but they will not do for a long campaign.”12
For Paine, the right to defend life and liberty extended both to individuals and to groups. Referring to Parliament’s Declaratory Act of 1766, Paine reasoned:
If a thief breaks into my house, burns and destroys my property, and kills or threatens to kill me, or those that are in it, and to “bind me in all cases whatsoever” to his absolute will, am I to suffer it? What signifies it to me, whether he who does it is a king or a common man; my countryman or not my countryman; whether it be done by an individual villain, or an army of them?13
Protection of life and liberty, whether from private criminals or governmental aggressors, required that individuals be armed. Well aware of that, the British stepped up their campaign to disarm the Americans, individually and as communities. As Paine wrote:
Howe’s first object is, partly by threats and partly by promises, to terrify or seduce the people to deliver up their arms and receive mercy. The ministry recommended the same plan to Gage, and this is what the Tories call making their peace. . . . Were the back counties to give up their arms, they would fall an easy prey to the Indians, who are all armed: this perhaps is what some Tories would not be sorry for. Were the home counties to deliver up their arms, they would be exposed to the resentment of the back counties, who would then have it in their power to chastise their defection at pleasure. And were any one state to give up irs arms, that state must be garrisoned by all Howe’s army of Britons and Hessians to preserve it from the anger of the rest.14
Just three days after the appearance of Crisis, the morning after Christmas, Washington surprised and routed the Hessians at Trenton. Paine was emboldened in the subsequent issues of Crisis issued in the coming weeks. He took note of the frequently repeated British order that “all inhabitants who shall be found with arms, not having an officer with them, shall be immediately taken and hung up.”15 Addre
ssing British Commander-in-Chief Howe, Paine asserted that even if the American soldiers all went home, “You would be afraid to send your troops in parties over the continent, either to disarm or prevent us from assembling, least they should not return.”16 Not surprisingly, Paine recalled General Gage’s letter “in which he informs his masters, That though their idea of his disarming certain counties was a right one, yet it required him to be master of the country, in order to enable him to execute it.”’17
The American Revolution was hardly exempt from the basic phenomenon of war: Enemy forces seek to destroy the lives, liberties, and properties of their opponents. Supporters of independence sought to protect themselves with arms by disarming, neutralizing, incapacitating, capturing, or killing supporters of the Crown. The patriots were particularly concerned with confiscating the firearms and estates of Tories as well as suppressing Tory publications and associations. After all, the Tories and their British allies were meting out the same punishments to the patriots and indeed had initiated the aggression years before.
That the patriots attempted to disarm some of their enemies—a more humane practice than just killing them—no more denigrated their belief in the right to keep and bear arms than their repression of the Tory press and organizations impeached their values of freedom of the press and of association. The following describes some of the patriots’ activities regarding the disarming of persons deemed to be disaffected to the cause of American independence, particularly as exemplified in New York. While illuminating the limits of rights in wartime, this analysis shows that limits can be counterproductive in same instances and that measures may be taken when war ends to prevent future abuses.
On September 16, 1775, the Committee of Safety of the New York Provincial Congress ordered the seizure of arms from “any person who has not signed the general association in this Colony” —who would have included not only Tories, but also persons who wished to avoid joining either side. Such impressed arms were to be appraised and were promised to be returned (or the value thereof paid) at the end of the conflict. Under the direction of the county committees, the local militias would enforce the seizures.18
Such orders to disarm “the disaffected” were regularly published in the press before and after this specific order,19 including in some cases the reasons for disarming specific persons. For instance, three witnesses testified that one Amos Knapp cursed the Provincial Congress and threatened to join the king’s standard. “The Committee have ordered to disarm the said Amos Knapp immediately, and he is hereby held up to public view as an avowed enemy to his country.”20 These proceedings were not trials in which one could protest his innocence, but were bills of attainder—legislative trials without any ability of the condemned persons to rebut the charges.
After a futile attempt to execute the September 16 directive, Major William Williams reported that his efforts in the towns of Jamaica and Hempstead were ineffectual, in that “the people conceal all their arms that are of any value; many declare they know nothing about the Congress, nor do they care any thing for the orders of the Congress, and say that they would sooner lose their lives than give up their arms; and that they would blow any man’s brains out that should attempt to take them from them.”21
The problem was exemplified in a letter from the Westchester Committee, which convicted one Godfrey Hains “of denying the authority, and speaking contemptuously of” the patriotic authorities. “He was ordered to be disarmed, and upon examining him respecting his arms and ammunition, he confessed that he has a gun, pistol, sword, powder and ball, but refused informing the committee where they are; and as Hains is a single man, the committee think it highly improbable that his arms can be found.”22
Such policies may have been counterproductive, in that those targeted for being disarmed—whether Tories or uncommitted persons—resented and resisted the orders, without which some may have been won over to the cause of independence. Agnes Hunt wrote:
The Tory farmers might have come to acquiesce in time to the new regime had they been left unmolested, or at least would hardly have felt the impulse to organise an active resistance, but this proposal to take away their arms because they would not join a rebel faction against their lawful King, touched them too nearly for indifference and made the new government a synonym for irresponsible tyranny. Many of the loyalist inhabitants either hid their arms, or boldly declared they knew nothing of the Congress or its orders, and stood ready to fight and die before yielding their weapons. Those that submitted cherished a hatred for the Revolution, and large number of the indifference passed definite opposition.23
The members of the Provincial Congress temporarily saw the light, and on October 24 disapproved the resolution of the Committee of Safety “relating to the impressing of arms.”24 But the patriots continued to detain known or suspected Tories, and rumors that the disarming of a broader group would recommence may have actually prompted some not ready to commit perceived treason to arm themselves for defense. The Declaration of the Inhabitants of Queens County, New York, of December 6, 1775, protested:
Reports have been circulated, and messages delivered to us, importing that we are to be disarmed, and some of our principal people taken in custody. . . . We call upon every man who values himself upon the inheritance of an Englishman, to say what he would do in such a case. Would he suffer himself to be disarmed, and tamely confess himself an abject slave? Certainly no. . . . Impelled by the most powerful arguments of self-defence, we have at last been driven to procure a supply of those means for protecting ourselves, of which we have been, till now, almost totally destitute. . . .25
Whatever the lack of success at seizing arms, the Provincial Congress decided on and published the names of hundreds of persons in Queens County deemed to be disaffected or delinquent.26 While such proceedings were perhaps necessary considering the wartime circumstances, the Provincial Congress acted as judge, jury, and executioner in condemning suspects who never appeared before it to contest such findings. Such bills of attainder, so contemptible in peacetime, were just another weapon in the necessarily unfair and unjust institution of war.
The same debate was simmering in the Continental Congress. George Washington noted that “I did not think myself Authorised to seize upon any Arms the property of private Person; but if they can be collected and the owners satisfied for them, it would be of very essential service.”27 However, on January 3, 1776, the committee on New York reported that the majority of inhabitants of Queen’s County, “being incapable of resolving to live and die freemen, . . . have deserted the American cause, by refusing to send Deputies, as usual, to the Convention of that Colony. . . . ”28 It resolved that Minutemen from New Jersey and Connecticut march to Queen’s County and “ disarm every person in the said County; who voted against sending Deputies to the said Convention, and cause them to deliver up their arms and ammunition on oath, and that they take and confine in safe custody, till further orders, all such as refuse compliance.”29
The patriotic forces swept through Queen’s County, forcing the listed persons to swear that their “fire-arms, side-arms, powder and lead,” which were “delivered up” to or “taken from us,” were all that they possessed, and that they had not hidden any arms. The signatories were required to characterize themselves as among those “who are disaffected to the opposition now making in America against ministerial tyranny.”30 Such confessed attestations were bound to be falsely sworn.
Lists were made of the owner’s name, type of weapon seized, and appraised value. Three examples out of many included Charles Nicolls, who had two guns and a silver hilted sword; Samuel Skinner, who had a small blunderbuss and a pair of pocket pistols; and Benjamin Huggit, who had a rifle gun and a cartridge box.31 The listings are revealing of the types of arms possessed by the colonists at that time. It is unfortunate that no comparable listing apparently survives of the names, types of arms, and values thereof for the arms of Boston’s inhabitants seized by General Gage in 1775.
I wou’d therefore humbly propose that the Inhabitants of Statten Island shou’d without loss of time be disarm’d and their arms delivered to some Regiment already raised but unfurnished with muskets. I do not imagine that the disarming the Tories will incapacitate them from acting against us, as they can easily be supplied by the Ships. I shou’d therefore think it prudent to secure their Children as Hostages if a measure of this kind (hard as it may appear) is not adopted, the Childrens Children of America may rue the fatal omission.32
Fortunately, the Continental Congress did not endorse the kidnapping of children, but it did on the same date recommend that the various patriotic organizations and committees
immediately to cause all persons to be disarmed within their respective colonies, who are notoriously disaffected to the cause of America, or who have not associated, and shall refuse to associate, to defend, by arms, these United Colonies, against the hostile attempts of the British fleets and armies; and to apply the arms taken from such persons in each respective colony, in the first place to the arming the continental troops as are raised by the colony for its own defence, and the residue to be applied to the arming the associators. . . .33
These were desperate times—disarming the “notoriously disaffected” was only one form of fighting the enemy, who were also liable to lose life, liberty, or property. Repression against those who had “not associated” with the patriots, however, was problematic. This was an attempt to force neutral people to side with the patriots, who were regarded as traitors by the established authorities. It may have been that the arms obtained did not compensate for the hostility generated within the farming communities that only wanted to be left alone.34