During the Revolution, Tucker had smuggled in arms from the West Indies at the behest of Governor Patrick Henry, and as a militia colonel he had led campaigns against British forces.3 After the war, Tucker rode the circuit as a judge and was eventually appointed to the Virginia Supreme Court. In 1813, he was appointed by President James Madison as a federal judge.4
Tucker’s observations in Blackstone’s Commentaries highlighted the improvements of the American over the English constitution in the expansion of individual rights. The English Declaration of Rights of 1689, for instance, provided: “That the Subjects which are Protestants, may have Arms for their Defence suitable to their Condition, and as are allowed by Law.” To this Tucker posited the Second Amendment: “The right of the people to keep and bear arms shall not be infringed . . . and this without any qualification as to their condition or degree, as is the case in the British government . . . .”5
In his constitutional treatise, which appeared as an appendix to the Commentaries, Tucker expanded on the differences between the English and American concepts of the right to arms. Quoting the Second Amendment, he wrote:
This may be considered as the true palladium of liberty . . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: bur the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.6
Similar criticisms of the English game laws, which prohibited commoners from hunting, were made by supporters of recognition of the right to bear arms. While such game laws may well have been enforced in a manner to prevent subjects from keeping guns, English judicial precedents actually held that the people at large could keep arms at home and that guns could be seized only when actually being used contrary to the hunting prohibitions.7 In any event, the above is consistent with the view that the Second Amendment protects the individual right to bear arms and to use them for self-defense—“the first law of nature.” A form of infringement of the right was the disarming of civilians under the guise of the game laws. The militia was not mentioned in the above context.
Tucker was an early exponent of the power of the judiciary to declare laws unconstitutional, a doctrine that the Supreme Court under Chief Justice John Marshall would later rule to be the cornerstone of judicial review. Tucker wrote:
If, for example, a law be passed by congress, prohibiting the free exercise of religion, according to the dictates, or persuasions of a man’s own conscience; or abridging the freedom of speech, or of the press; or the right of the people to assemble peaceably, or to keep and bear arms; it would, in any of these cases be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused from any penalty which might be annexed to the breach of such unconstitutional act. . . . The judiciary, therefore, is that department of the government to whom the protection of the rights of the individual is by the constitution especially confided, interposing its shield between him and the sword of usurped authority, the darts of oppression, and the shafts of faction and violence.8
The right to have arms, under the above view, was on a par with freedom of religion, speech, and assembly, and abridgment of any of these rights should be declared unconstitutional. The judiciary had a special responsibility to protect these “rights of the individual.”
Judicial review was particularly applicable to laws purportedly passed not under an enumerated power, but under the “necessary and proper” clause, and which violated Bill of Rights guarantees. A court may declare a federal criminal law unconstitutional in that circumstance:
If, for example, congress were to pass a law prohibiting any person from bearing arms, as a means of preventing insurrections, the judicial courts, under the construction of the words necessary and proper, here contended for, would be able to pronounce decidedly upon the constitutionality of these means. But if congress may use any means, which they choose to adopt, the provision in the constitution which secures to the people the right of bearing arms, is a mere nullity; and any man imprisoned for bearing arms under such an act, might be without relief; because in that case, no court could have any power to pronounce on the necessity or propriety of the means adopted by congress to carry any specified power into complete effect.9
Tucker was even more specific in explaining how the British Parliament would violate basic rights in the guise of some necessary objective, but that Congress had no such power. He reiterated that in England the game laws “have been converted into the means of disarming the body of the people,” and that “the acts directing the mode of petitioning parliament, and those for prohibiting riots: and for suppressing assemblies of free-masons, are so many ways for preventing public meetings of the people to deliberate upon the public, or national concerns.” By contrast, Congress had “no power to regulate, or interfere with the domestic concerns, or police of any state,” “nor will the constitution permit any prohibition of arms to the people; or of peaceable assemblies by them, for the purposes whatsoever, and in any number, whenever they may see occasion.”10
Regarding the law of treason in England, Sir Mathew Hale’s Pleas of the Crown observed that “the very use of weapons by such an assembly, without the king’s licence, unless in some lawful and special cases, carries a terror with it, and a presumption of warlike force, &c.” Tucker commented that “the bare circumstance of having arms, therefore, of itself, creates a presumption of warlike force in England, and may be given in evidence there, to prove quo animo the people are assembled.” Tucker asked:
But ought that circumstance of itself, to create any such presumption in America, where the right to bear arms is recognised and secured in the constitution itself? In many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than an European fine gentleman without his sword by his side.11
Tucker synthesized the Founders’ aspirations in favor of a declaration of rights that was more than a scrap of paper. By contrast, Alexander Hamilton had never put much stock in a bill of rights. Indeed, some of his controversial positions suggested lack of concern for individual rights—from his endorsement of monarchy and abolition of the states at the constitutional convention in 178712 and his denunciation of a bill of rights in The Federalist No. 84,13 to his support as treasury secretary in the Washington administration for a centralized government with few bounds. Yet he never doubted the principles behind the Second Amendment. In a seditious libel prosecution in 1803–1804, Hamilton asserted: “Never can tyranny be introduced into this country by arms . . . . The spirit of the country with arms in their hands, and disciplined as a militia, would render it impossible.”14
As fate would have it, Hamilton would participate in a practice that involved arms, but that had no continence under the Second Amendment and was denounced by many of the Founders—dueling. On July 11, 1804, his pistol was still pointed upward when it discharged first and prematurely, while the pistol of Aaron Burr—vice president of the United States—found its deadly mark. Popular myth suggested that the virtuous Hamilton intentionally fired high to miss Burr. However, unbeknownst to Burr, Hamilton had
chosen pistols with hair triggers that allowed a more accurate shot but that Hamilton pulled too soon—perhaps inadvertently. In an era when the gentlemanly object was to satisfy honor by shooting without hitting either opponent, Hamilton’s choice would have been considered by some as cheating.15
John Adams described Hamilton as the “most restless, impatient, artful, indefatigable and unprincipled intriguer in the United States.”16 Thomas Jefferson said of Burr, “I never indeed thought him an honest, frank-dealing man, but considered him as a crooked gun, or other perverted machine, whose aim or stroke you could never be sure of.”17
Tench Coxe had been one of Hamilton’s federalist colleagues in the old days of 1787–1788, arguing that a constitution without a bill of rights was fine in that the people were armed and could protect their rights. But with Madison he broke ranks with the die-hard, anti-bill of rights faction and supported the great compromise of adding a declaration of individual liberties. When Madison introduced his bill in Congress, Coxe explained that under what became the Second Amendment, “the people are confirmed . . . in their right to keep and bear their private arms.”18
Coxe would serve in the Washington, Adams, and Jefferson administrations, but his ultimate loyalty was to the Jeffersonian Republican Party, the purer supporter of individual rights and limited government. As late as 1823, Coxe found himself still writing newspaper articles on the right to keep and bear arms, this time on behalf of the Republican Party against the presidential campaign of John Quincy Adams.19 Coxe referred to “the right to own and use arms and consequently of self-defence and of the public militia power . . . .”20
Decrying the English game laws, which were intended to disarm the populace, Coxe wrote that “his own firearms are the second and better right hand of every freeman . . . .”21 He made the following perceptive observation that having arms is sometimes a duty, but is ever a right:
So prudent, faithful and provident have our people and constitutions been, that we find in their precious bills of rights, schedules of duties, reasons of powers, and declarations recognising the right to own, keep and use arms, provisions preventing and forbidding the legislatures to interfere with and to abrogate, that all important right of the citizens.22
Coxe sought to show that John Adams and his son John Quincy had monarchial tendencies and supported standing armies. Such exaggerated arguments were made in the heat of a campaign for the election of the president. John Quincy Adams won the race and took office in 1824, a few months after which Coxe died.
John Adams proved his bona fides as a supporter of an armed populace at the same time that Coxe had doubted them. In 1823, William H. Sumner published The Importance of the Militia to a Free Commonwealth, which was addressed to and endorsed by Adams. Sumner wrote that the United States would be a target for invasion “if its population, like that of Europe, chiefly consisted of an unarmed peasantry, and its whole reliance was on its regular army, one pitched battle would decide its fate. But a country of well trained militia-men is not conquered when its army is beaten . . . . Here, every house is a castle, and every man is a soldier. Arms are in every hand.”23
Sumner contended that “it is better that the arms should be kept by the men themselves, at their own dwellings, than in the public arsenals. They thus learn to take care of them, at least; and as opportunities for hunting and practical shooting offer, they improve as marksmen.” Given the growth of settlements and clearing of forests, “drilling becomes necessary as a substitute for that habitual exercise of shooting at game, which has obtained for Americans the reputation of being the best riflemen in the world.”24
“Your manuscript dissertation concerning the militia,” wrote John Adams in a postscript to Sumner’s pamphlet, “is so conformable to all my opinions concerning it from my cradle, that it seemed to be living my life over again . . . .” Adams continued:
The American states have owed their existence to the militia for more than two hundred years. Neither schools, nor colleges, nor town meetings have been more essential to the formation and character of the nation than the militia . . . . Impose its constitution by every prudent means, but never destroy its universality. A select militia will soon become a standing army . . . . Whenever the militia comes to an end, or is despised or neglected, I shall consider this union dissolved, and the liberties of North America lost forever.25
Those were strong words for the conservative Adams, but together with Sumner’s reflections they represent the significance of the Second Amendment’s principles over three decades after ratification of the Bill of Rights.
Congregationalist minister Timothy Dwight, who had been a chaplain in the Continental army during the Revolution and served as president of Yale College from 1795 to 1817, synthesized American concepts of arms possession as a right and a duty in his 1821 commentary of American life and institutions as follows:
In both New-England, and New-York, every man is permitted, and in some, if not all the States, is required to possess fire arms. To trust arms in the hands of the people at large has, in Europe, been believed . . . to be an experiment, fraught only with danger. Here by a long trial it has been proved to be perfectly harmless: neither public nor private evils having ever flowed from this source, except in instances of too little moment to deserve any serious regard.26
Under a just government and with proper education, Dwight continued, “few men will be disposed to use arms, unless for their amusement, and for the defence of themselves and their country. The difficulty, here, has been to persuade the citizens to keep arms; not to prevent them from being employed for violent purposes.”27
Thomas Jefferson remains perhaps the most interesting of the Founders as an owner of firearms and advocate of the Second Amendment. “One loves to possess arms, though they hope never to have occasion for them,” he wrote to George Washington on June 19, 1796.28 Washington himself owned perhaps fifty firearms during his life, and some of his pistols (typically silver mounted), saddle holsters, and fowlers (shotguns) may be seen today at Mt. Vernon and West Point. His diaries contain numerous entries related to the acquisition of firearms and to “ducking” and other hunting activities.29
Not long after the Revolutionary War ended, Washington and his servant Billy were riding on horseback from Mount Vernon to Alexandria. The main road was impassable, so the two had to ride through the farm of a man described as “a desperado who had committed murder.” The account goes as follows:
As was then the custom, the General had holsters, with pistols in them, to his saddle. On returning to Mount Vernon, as General Washington was about to enter on this private road, a stranger on horseback barred the way, and said to him, “You shall not pass this way.” “You don’t know me,” said the General. “Yes, I do,” said the ruffian; “you are General Washington, who commanded the army in the Revolution, and if you attempt to pass me I shall shoot you.” General Washington called his servant, Billy, to him, and taking out a pistol, examined the priming, and then handed it to Billy, saying, “If this person shoots me, do you shoot him;” and cooly passed on without molestation.30
In 1791, the year the Bill of Rights was ratified, Washington obtained a Pennsylvania long rifle.31 Washington’s last will and testament included the following: “To General de la Fayette I give a pair of finely wrought steel pistols, taken from the enemy in the Revolutionary war.”32 Washington died in 1799, and the inventory of his estate lists seven swords and seven guns in the study, “1 pr Steel Pistols” and “3 pr Pistols” in an iron chest, “1 Old Gun” in the storehouse, and one gun at the River Farm.33
Patrick Henry died a few months earlier, also in 1799, and the inventory of his estate includes “1 large Gun” and “1 pr. pistols.”34
Washington, of course, had signed the Militia Act of 1792, which required every male citizen to have a firearm. As president, Jefferson reiterated the value of a militia consisting of armed citizens. “Uncertain as we must ever be of the particular point in our circumference where
an enemy may choose to invade us,” he stated in his First Annual Message on December 8, 1801, “the only force which can be ready at every point and competent to oppose them, is the body of neighbouring citizens as formed into a militia.”35
“None but an armed nation can dispense with a standing army,” Jefferson wrote in 1803. “To keep ours armed and disciplined is therefore at all times important.”36 And in his Eighth Annual Message, on November 8, 1808, Jefferson exhorted:
For a people who are free, and who mean to remain so, a well-organised and armed militia is their best security. It is, therefore, incumbent on us, at every meeting, to revise the condition of the militia, and to ask ourselves if it is prepared to repel a powerful enemy at every point of our territories exposed to invasion.37
“I learn with great concern that [one] portion of our frontier so interesting, so important, and so exposed, should be so entirely unprovided with common fire-arms,” Jefferson wrote to Jacob J. Brown that same year. “I did not suppose any part of the United States so destitute of what is considered as among the first necessaries of a farm-house.”38 That suggests how universal firearm ownership was perceived to be and how surprising it was that a particular frontier community was not well armed.
In retirement at Monticello, Jefferson again had ample time for hunting, and he was a true sportsman. His servant Isaac recalled:
Mr. Jefferson used to hunt squirrels and partridges; kept five or six guns. Oftentimes carred Isaac wid him. Old Master wouldn’t shoot partridges settin’. Said “he wouldn’t take advantage of ’em”—would give ‘em a chance for thar life. Wouldn’t shoot a hare settin’, nurher; skeer him up fust.39
Jefferson acquired arms in the same manner as he sought learned books and fine wines. His memorandum books kept between 1768 and 1823 show numerous references to the acquisition of pistols, guns, muskets, rifles, fusils, gun locks, and other gun parts; the repair of firearms; and the acquisition of shot, gunpowder, powder flasks, and cartridge boxes.40 Included were a pair of “Turkish pistols . . . so well made that I never missed a squirrel at 30 yds. with them.” He presented them to Payne Todd, Dolley Madison’s son, in 1816.41
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