The Founders' Second Amendment

by Stephen P. Halbrook

  Thus, the right of self-defense serves the goals of humanity. For his claim that defense of one’s self is the most basic law of nature, Wilson quoted Cicero’s oration in defense of Milo. In a passage well familiar to America’s Founders, Cicero described as a law of nature:71

  [I]f our lives are endangered by plots or violence or armed robbers or enemies, any and every method of protecting ourselves is morally right. When weapons reduce them to silence, the laws no longer expect one to await their pronouncements. For people who decide to wait for these will have to wait for justice, too—and meanwhile they must suffer injustice firsr.72

  For the proposition that the natural right to self-defense cannot be abrogated by law, Wilson cited Blackstone.73 Blackstone asked “what wanton lengths of rapine or cruelty outrages . . . might be carried [out], unless it were permitted a man immediately to oppose one violence with another.”74

  In another lecture, Wilson provided the basis for the proposition: “Homicide is enjoined, when it is necessary for the defence of one’s person or house.”75 He explained about the defense of one’s person:

  [I]t is the great natural law of self preservation, which, as we have seen, cannot be repealed, or superseded, or suspended by any human institution. This law, however, is expressly recognised in the constitution of Pennsylvania. “The right of the citizens to bear arms in the defence of themselves shall not be questioned.” This is one of our many renewals of the Saxon regulations. “They were bound,” says Mr. Selden, “to keep arms for the preservation of the kingdom, and of their own persons.”76

  The above referred to Nathaniel Bacon’s compilation of works by John Selden, An Historical and Political Discourse of the Laws and Government of England, which the Crown would ban. Selden, co-author of the Petition of Right (1628), served in Parliament as an enemy of Royalism, as would Bacon. The actual quotation Wilson took from the Discourse reads as follows:

  Probable it is that the Lords might have their Villains to follow them in the Batle, but the strength consisted of the Freemen; and though many were bound by tenure to follow their Lords to the Wars, and many were Voluntiers, yet it seems all were bound upon call under peril of Fine, and were bound to keep Arms for the preservation of the Kingdom, their Lords, and their own persons; and these they might neither pawn nor sell, but leave them to descend to their Heirs . . . .77

  The Saxon requirement of keeping arms as a duty had now evolved into a right in the Pennsylvania Declaration and the Second Amendment. Yet it had elements of being a right even in prior times. The Discourse noted that the “ancient custom of maintaining Arms by every Freeman, for the defence of the Kingdom,” was “made uncertain by the avarice of Kings . . . .”78 Moreover, “the arming of a man’s own person” contributed to “the safeguard of the Rights and Liberties of the People, invaded in those times by . . . expressions of Prerogative Royal . . . .”79

  The right to keep arms in the home is fundamental to this tradition. Wilson discussed justifiable homicide when necessary to defend one’s home as follows:

  “Every man’s house is his castle,” says my Lord Coke, in one of his reports, “and he ought to keep and defend it at his peril; and if any one be robbed in it, it shall be esteemed his own default and negligence.” For this reason, one may assemble people together in order to protect and defend his house.80

  Wilson discussed the issue of providing for “the common defence” by reference to the army and militia clauses of the federal Constitution, and Pennsylvania’s provision that “the freemen of this commonwealth shall be armed for its defence.”81 He did not mention the “right” to bear arms in this context.

  The Pennsylvania Declaration of Rights of 1790 and Justice Wilson’s lectures provide insight into the meaning of the Second Amendment. The right to keep and bear arms was a pre-existing “right” of “the people” or “the citizens,” not just a militia duty. While the right contributed to a well regulated militia, it also ensured the basis for defense of persons and the home.

  THE DELAWARE CONVENTION OF 1791

  Delaware held a constitutional convention beginning in late 1791. The committee to consider alterations of the Constitution, chaired by John Dickinson, included twelve members, five of whom had sat in the constitutional convention of 1776.82 The committee of the whole determined “that the Declaration of Rights should be amended in such manner, as more particularly to enumerate, and more precisely define, the rights reserved out of the general powers of government.”83 Indeed, the 1776 Declaration was rather scant. Renewed interest may have stemmed from Pennsylvania’s 1790 Declaration and the federal Bill of Rights, which Delaware had ratified in early 1790 and which had become effective by Virginia’s ratification on December 15, 1791.

  Two days after Virginia’s action, the select committee in the Delaware convention reported a detailed declaration of rights, which included the following: “The right of the citizens to bear arms in defence of themselves, and the state, shall not be questioned.”84 This language, copied from that of Pennsylvania,85 was substituted for the now deleted militia clause of the 1776 Declaration.86

  The convention’s consideration and ultimate rejection of this amendment reflected an insecurity stemming from the disarming of Whigs by Tories and vice versa dating to the Revolution. Richard Bassett, a member of the committee and a Tory, complained about firearm seizures and was himself disarmed in 177687 but went on to serve in the 1776 convention and the federal constitutional convention of 1787. Two other members, Charles Polk and Rhoads Shankland, allegedly encouraged their followers to carry guns at the Sussex election in 1787.88

  When the right-to-arms proposal reached the committee of the whole, the delegates could not agree on proposed language to qualify the right. The minutes reflect the following:

  The eighteenth Section of the first Article being under Consideration, viz.

  18. The Right of the Citizens to bear Arms in defence of themselves and the State, shall not be questioned.

  It was moved by Mr. Batson, seconded by Mr. Polk, to add to the Section the Words while acting in strict subordination to the Civil Power:

  Which passed in the Negative.

  A motion was made by Mr. Ridgely, seconded by Mr. Johns, to strike out the Words, the Citizen to bear Arms, and, in Lieu thereof, insert the Words, bearing Arms by Citizens qualified to vote for Representatives.

  It was then moved by Mr. Johnson, seconded by Mr. Clayton, to postpone the last Motion in order to introduce the following:

  That there be added to the Section the Words unless under such Pretensions, any Person disturb the Peace and Happiness, or Safety of Society.

  On the Question for Postponement,

  It was determined in the Affirmative.

  A Motion was then made by Mr. Bassett, seconded by Mr. Batson, to strike out the said Section,

  Which was determined in the Affirmative; And the Section expunged.89

  Although the delegates did not fear a guarantee of an individual right to bear arms for self-defense, they were apprehensive about groups of armed citizens taking it upon themselves to act in “defence of the state,” such as during elections. The first proposed amendment, that citizens bearing arms must act “in strict subordination to the Civil Power,” may have been offered to restrict militia interference at the polls. Interestingly, Charles Polk, who seconded the motion, won both disputed elections in Sussex in 1787. He apparently resented the interference by Whig militiamen at the first election and advised his followers to carry firearms at the second.90

  The second proposed qualification sought to restrict bearing arms to “Citizens qualified to vote for Representatives.” This appears to have been an attempt to extend the policy dating from the Revolution of denying suffrage to Loyalists and disarming them. Loyalists had not been re-enfranchised until 1790,91 and some Whigs in the convention may have relished an opportunity again to take the vote and the arms away from the perceived traitors. This amendment may have been killed by delegates wishing to
bury the hatchet and allow the same rights to all citizens.

  The third amended version sought to qualify arms-bearing by persons with the proviso that it not “disturb the Peace and Happiness, or Safety of Society.” This again may have been directed against interference by armed bodies with elections or otherwise disturbing the peace.

  The delegates being unable to agree on specific language, the whole section was stricken. Those moving to strike were Richard Bassett, whose complaint about firearm seizures during the Revolution is noted above, and Mr. Batson, who had proposed that the right to bear arms be exercised in subordination to the civil power. Nonetheless, the convention members did recognize the right of the citizens to bear arms. Many had served the year before in the legislature that adopted the federal Second Amendment. Their own select committee had recommended the arms guarantee. The delegates apparently preferred to leave the right unenumerated when they could not agree on restrictive language.

  In its final version, adopted in mid-1792, the Delaware Declaration of Rights included neither a militia clause not an arms guarantee. The preference against standing armies, and for subordination of the military to the civil power, remained.92

  Even though the de facto right of the citizen to bear arms went unquestioned, the noncitizen enjoyed no such right. In a message to the constitutional convention of 1791, Warner Mifflin denounced slavery, proposing constitutional recognition of the right of every human born in Delaware to be free.93 The select committee recommendation that the Declaration of Rights include the phrase all men “are by Birth free and equal” was deleted on motion of John Dickinson.94 The only legislative infringement on the individual right to bear arms in Delaware was the following: “That if any Negro or Mulatto slave shall presume to carry any guns, swords, pistols, fowling-pieces, clubs, or other arms and weapons whatsoever, without his master’s special licence for the same, he shall be whipt with twenty-one lashes, upon his bare back.”95

  The Militia Act of 1793 provided at “each and every free able bodied white male citizen,” aged 18 through 44, must “provide himself with the arms” of either a footman, including a musket or firelock, or a horseman, including a sword and a pair of pistols.96 While the constitutional convention had failed to agree on specific language for a right to bear arms, doing so remained a legal duty in Delaware.

  THE UNION EXPANDS

  Unlike Delaware, Kentucky—admitted as the fifteenth state in the union on February 3, 1791—had no reservations about declaring the right to bear arms. Its Constitution of 1792 included a bill of rights with many of the now­familiar provisions of what it called “the general great and essential principles of liberty and free government,” but two guarantees were said to be held by the citizens rather than the people. It declared “that the citizens have a right in a peaceable manner, to assemble together for their common good,”97 and “that the right of the citizens to bear arms in defence of themselves and the state shall not be questioned.”98 A wholly separate article, not part of the bill of rights, provided: “The free-men of this Commonwealth shall be armed and disciplined for its defence.”99

  Founded on a Constitution tempered with a Bill of Rights, it was now time for the young republic to begin admitting more states, each one reflecting a unique history but all agreeing on certain fundamental principles. Not the least of these principles was the right to keep and bear arms. The great federal purpose of that right was to promote a well regulated militia, and to that subject Congress turned its attention.

  CHAPTER 14

  The Great Militia Debate

  PRESIDENT GEORGE WASHINGTON admonished members of the House of Representatives in early 1790 that “a free people ought not only to be armed, but disciplined.”1 In the ensuing months, congressional debate on military legislation would shed light on contemporaneous thinking on standing armies, militia, and bearing arms both as a right and a duty. The result would be enactment of the federal Militia Act of 1792, which required every “free able bodied white male citizen” aged 18 through 45 to “provide himself with a good musket or firelock,” bayonet, and ammunition.2

  In early 1790, General Henry Knox, secretary of war, laid before the Congress a detailed militia plan. “An energetic national militia,” he declared, “is to be regarded as the capital security of a free Republic; and not a standing army, forming a distinct class in the community.”3 While “all men of the legal military age should be armed” and liable for service,4 “each individual, at his first joining the annual camps of discipline, will receive complete arms and accoutrements, all of which, previously to his being discharged from the said camps, he must return ....”5

  Knox’s plan was not well received. While the Senate met in secret and no debates were officially recorded, Senator William Maclay of Pennsylvania kept a diary in which he recorded that a group met “to discuss Secretary Knox’s plan for regulating the militia and that, after voting their disapproval of it, they appointed a committee of seven to draft a memorial to present to the citizens, should Congress take up the plan.”6

  Sharp divisions over a military establishment had been simmering since the previous year, when Alexander Hamilton gave a July 4 speech deriding the militia as “the mimicry of soldiership.”7 Now, with Knox’s plan submitted, Representative (and Judge) Aedanus Burke of South Carolina made “a Violent personal Attack on Hamilton ... which the Men of the blade say must produce a duel.”8

  According to Maclay, supporters of an army accused the Spaniards of having “supplied the Indians with Arms and Ammunition,”9 but argued that “it was dangerous to put Arms into the hands of the Frontier People for their defence, least they should use them against the United States.”10 Maclay protested these allegations as “subterfuges,” writing:

  The Constitution certainly never contemplated a Standing Army in time of peace. A Well regulated Militia to execute the laws of the Union, quell insurrections and repel Invasions, is the very language of the Constitution. General Knox offers a most exceptionable bill for a General Militia law which excites (as it is most probable he expected) a general Opposition. Thus the Business of the Militia stands still, and the military establishment bill which increases the standing Troops One half is pushed with all the Art & address of ministerial Management.11

  The old pro- versus anti-army factions resurfaced. Senators Oliver Ellsworth of Connecticut and Charles Carroll of Maryland declared that a “Military Establishment meant & could mean nothing short of a Standing Army.” But “of all the Flamers none blazed like [Ralph) Izard [of South Carolina]. He wished for a Standing Army of 10,000 men.... He was well aswered by [Richard Henry] Lee. But it was in Vain.”12

  Maclay recorded on April 23, 1790: “The Military Establishment bill came up concurr’ d to. Strange that not a Pennsylvanian should Object to this bill. As it now stands it flatly contradicts the Constitution of Pennsylvania both old & new.”13 Pennsylvania’s 1776 Declaration of Rights stated that “as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up,”14 but the pending 1790 version declared only that no peacetime standing army be kept up “without the consent of the legislature.”15

  In the future Senator Maclay would continue to believe that Alexander Hamilton’s faction was promoting war with Native Americans and foreign powers as a “Pretext for raising an Army meant to awe our Citizens into Submission.”16 But the commonplace fact of the citizenry in arms was exemplified in the July 4, 1790, celebration in New York (held a day late because it fell on a Sunday) . When Congress adjourned, Maclay saw that “all the Town was in Arms .... the firing of cannon and small arms with beating of Drums kept all in uproar.”17 The senators went to President Washington’s home for wine and cakes, and then to a reading of the Declaration of Independence.18

  Some “Political Maxims” published in July 1790 by the Independent Gazetteer asserted: “A Well regulated militia is the best defence to a free people, a standing army in time of peace are not equal to a well regulated militia.�
��19 “Where a standing army is established, the inclinations of the people are but little regarded.”20

  While Knox’s militia proposal continued to languish, on December 14, 1790, Representative Elias Boudinot of New Jersey introduced “A Bill more effectually to provide for the national Defence, by establishing a uniform Militia throughout the United States.”21 The bill’s fundamental feature was that every male citizen would arm himself and participate in the militia.22

  House debate began two days later. Congressman Josiah Parker of Virginia objected that the requirement that “every man in the United States shall ‘pro­vide himself’ with military accoutrements would be found impracticable, as it must be well known that there are many persons who are so poor that it is impossible they should comply with the law.”23 He proposed that if a militiaman demonstrates to his commanding officer that he is unable to provide the arms required by law, the officer shall furnish the arms at the expense of the United States. John Vining of Delaware moved to add that the arms could be used only on militia duty and that the officer could demand the return of the arms at any time.24

  Several members doubted that every man should be a member of the active militia, but there was a consensus that every man be armed.25 “As far as the whole body of the people are necessary to the general defence, they ought to be armed,” explained Thomas Fitzsimons of Pennsylvania.26

  James Jackson of Georgia argued that “the people of America would never consent to be deprived of the privilege of carrying arms. Tho it may prove burdensome to some individuals to be obliged to arm themselves, yet it would not be so considered when the advantages were justly estimated.” He noted some positive historical examples: