“compulsory military service”: Uviller and Merkel, The Militia and the Right to Arms, 119.
nationwide registry: See, e.g., “return” for 1804: March 22, 1804, Library of Congress. “A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates,” 1774–1875, American State Papers, 8th Cong., 1st Sess., Military Affairs: Vol. 1, http://lcweb2.loc.gov/cgi-bin/ampage?collId=llsp&fileName=016/llsp016.db&recNum=173. Jefferson’s efforts to learn the readiness of the militias is described in Mahon, History of the Militia and the National Guard, 64.
Most of the federal militiamen: Alexander DeConde, Gun Violence in America (Boston: Northeastern University Press, 2000), 41.
government established its authority: See William Hogeland, The Whiskey Rebellion: George Washington, Alexander Hamilton, and the Frontier Rebels Who Challenged America’s Newfound Sovereignty (New York: Simon & Schuster, 2006). Many of the rebels thought they were merely organizing militias as had been done against British tyranny. They were surprised to learn there was a new federalized militia in town.
Hamilton took effective command: See Ron Chernow, Alexander Hamilton (New York: Penguin, 2004), 553–54.
Northeastern states refused: A. J. Langguth, Union 1812: The Americans Who Fought the Second War of Independence (New York: Simon & Schuster, 2006), 197; J.C.A. Stagg, The War of 1812: Conflict for a Continent (Cambridge: Cambridge University Press, 2012), 73.
British soldiers landed: The failure of the Maryland militia is described in Langguth, Union 1812, 297–312. “Even as their troops proceeded toward the capital . . . the Americans were not firing on them,” Langguth writes. “One British soldier compared their progress to strolling through open fields on a summer picnic.”
Two historians dryly wondered: Uviller and Merkel, The Militia and the Right to Arms, 121.
the duty-bound concept of militia service withered: A window on the phenomenon is found in the writings of Joseph Story. A Supreme Court justice and devotee of Blackstone, Story wrote a highly influential treatise on the U.S. Constitution, published in 1833. He wrote of the Second Amendment:
The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. 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; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.
Joseph Story, Commentaries on the Constitution of the United States, 3: § 1890, Boston, 1833; The Founders’ Constitution, vol. 5, amend. II, doc. 10, University of Chicago Press. http://press-pubs.uchicago.edu/founders/documents/amendIIs10.html. Story’s patriotic lament for the militia has taken on a new light in recent years. Revisionists have focused on one line—“The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic”—to prove that Story embraced a twenty-first-century individual rights view. Stephen Halbrook, for example, writes that Story “interpreted the Second Amendment as providing for an individual right to bear arms that would be sufficient to overcome even the standing army of an oppressive government.” He cuts off Story’s full quote, omitting the last three sentences—the ones where the jurist frets that it is hard “to keep the people duly armed without some organization.” Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (Albuquerque: University of New Mexico Press, 1984), 92–93.
Popular illustrations: Compare the drawing, “President Washington reviews the well-regulated militia used by the government to put down the Whiskey Rebels in 1994,” Cornell, A Well-Regulated Militia, 72, with the depiction of a militia muster from 1841, ibid., 136.
gun violence rose sharply: Walter Russell Mead has identified an affinity for being armed—and a quickness to affront—as central to the Jacksonian tendency in American life. Mead, Special Providence: American Foreign Policy and How It Changed the World (New York: Routledge, 2009), 223–33. “Jacksonians are armed for defense: of the home and person against robbers; against usurpations of the federal government; and of the United States against its enemies.”
Andrew Jackson himself fought numerous duels: See Jon Meacham, American Lion: Andrew Jackson in the White House (New York: Random House, 2008), 25–26. In one duel, Jackson let the other man shoot first. Despite being hit, he carefully took aim, and fired a fatal shot. He told a friend, “If he had shot me through the brain, sir, I should still have killed him.”
new state provisions had an individualist cast: Saul Cornell, “Heller, New Originalism, and Law Office History: ‘Meet the New Boss, Same as the Old Boss,’ ” UCLA Law Review 56 (2009): 1112.
Arkansas’s court ruled: State v. Buzzard, described in Cornell, A Well-Regulated Militia, 147.
In 1820, a Kentucky state court: Bliss v. Commonwealth of Kentucky, 12 Littell 90 Ky. 1822.
Kentucky stood apart: There are other cases as well. For example, Heller cites a Virginia state case in 1820 in which a judge noted that free blacks in Virginia do not have the constitutional rights extended to whites, including the right to enter the state and to bear arms. Aldridge v. Commonwealth, 2 Va. Cas. 447, 449 (1824), cited in Heller, 554 U.S. 510 (2008) (fn. 21).
Two models emerged: The dominant “Arkansas doctrine” was spelled out in the 1870s by the prominent legal scholar John Forrest Dillon. He found a strong judicial consensus that the constitutional protection extended only to militia arms; there was a common law right of self-defense, but subject to restrictions such as a ban on carrying a concealed weapon. See Cornell, A Well-Regulated Militia, 186–89. On the other hand, for a survey of state constitutions, commentaries, and rulings in the 1800s that support an individualist interpretation, see David B. Kopel, “The Second Amendment in the 19th Century,” Brigham Young Law Review 1360 (1998), http://lawreview.byu.edu/archives/1998/4/kop.pdf.
It was pungently expressed by the Supreme Court: Aymette v. State, 21 Tenn. 154 (1840) at 148, 161.
“It would give to persons of the negro race”: Dred Scott v. Sanford, 60 U.S. 417 (1857).
Abraham Lincoln’s speech: See Harold Holzer, Lincoln at Cooper Union: The Speech That Made Abraham Lincoln President (New York: Simon & Schuster, 2006), 123–31.
Many laws: Cottrol and Diamond, “Toward an Afro-Americanist Reconsideration, 340–42.”
“Beecher’s Bibles”: Debby Applegate, The Most Famous Man in America: The Biography of Henry Ward Beecher (New York: Doubleday, 2006), 281–82.
Brown had even drafted a proposed new U.S. Constitution: The abolitionist’s attorney used the proposed constitution at his trial to try to prove he was of “unsound mind.” Tony Horwitz, Midnight Rising: John Brown and the Raid That Started the Civil War (New York: Henry Holt, 2011), 80–82.
President Lincoln called for 75,000 militiamen: James M. McPherson, Battle Cry of Freedom: The Civil War Era
(Oxford: Oxford University Press, 1988), 274–75.
the U.S. Army comprised sixteen thousand men: Ibid., 348. The states sent troops, especially during the first two years of the war, but the numbers fell far short of what was needed. By 1863, the Union resorted to a draft. Chambers, History of the Militia and the National Guard, 97–107.
On April 9, 1865: The surrender and the contrast between the two generals is described in Jay Winik, April 1865: The Month That Saved America (New York: HarperCollins, 2001), 174–91.
“In Mississippi houses have been burned”: Congressional Globe, 39th Cong., 1st Sess., 1866, Freedmen’s Bureau Bill, Representative Thomas D. Eliot.
South Carolina’s black citizens sent a petition: Stephen P. Halbrook, Freedmen, The Fourteenth Amendment, and the Right to Bear Arms, 1866–1876 (Westport: Praeger, 1998), 9–10.
An army general issued a proclamation: Congressional Globe, 39th Cong., 1st Sess. 908–9 (1866), quoted in Saul Cornell and Justin Florence, “The Right to Bear Arms in the Era of the Fourteenth Amendment: Gun Rights or Gun Regulation,” Santa Clara Law Review 50 (2010): 1043, http://digitalcommons.law.scu.edu/lawreview/vol50/iss4/1.
Freedman’s Bureau: The agency was formally called the Bureau of Refugees, Freemen, and Abandoned Lands. Lincoln signed it into law the month before he died. Section 14 of the legislation to strengthen the bureau, enacted July 16, 1866, stated, “The right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens . . . without respect to race or color, or previous condition of slavery.”
These sweeping guarantees: The Fourteenth Amendment is the subject of massive amounts of scholarship. A good recent narrative history of its enactment is Garrett Epps, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post–Civil War America (New York: Henry Holt, 2006). For a good survey of the issues pertaining to the Fourteenth Amendment and its impact on state laws affecting guns, see Lawrence Rosenthal, “Second Amendment Plumbing After Heller: Of Standards of Scrutiny, Incorporation, Well-Regulated Militias and Criminal Street Gangs,” Urban Lawyer 41 (2009): 1.
“The problem of establishing the Amendment’s ‘original intent’ ”: Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877 (New York: Harper & Row, 1988), 256–58.
There is some evidence in these debates: Congressional Globe, 39th Cong., 1st Sess., March 8, 1866, Civil Rights Act 1866, Representative Henry J. Raymond.
“the personal rights guaranteed”: Senator Jacob M. Howard, Congressional Globe, 39th Cong., 1st Sess., 2764–65 (May 23, 1866), quoted in Stephen Halbrook, “Personal Security, Personal Liberty, and ‘the Constitutional Right to Bear Arms’: Visions of the Framers for the Fourteenth Amendment,” Seton Hall Constitutional Law Journal 5 (1995): 341–434.
“In Mississippi”: Congressional Globe, 39th Cong., 1st Sess., December 13, 1865, 14th Amendment debates, Senator Henry Wilson.
“Of whom will that militia consist?”: Congressional Globe, 40th Cong., 2nd Sess., 2198 (Representative Michael C. Kerr) (1868), quoted in Stephen Halbrook, “The Jurisprudence of the Second and Fourteenth Amendments,” George Mason Law Review 4 (1981): 1, 25.
The amendment’s supporters did not sell the controversial measure: For a forceful articulation of the view that the Republicans were not of one mind on the question of whether the Fourteenth Amendment intended to apply the Second Amendment right to states, see Carole Emberton, “The Limits of Incorporation: Violence, Gun Rights, and Gun Regulation in the Reconstruction South,” Stanford Law and Policy Review 17, no. 3 (2006): 615–34.
“Between 1775 and 1866”: Amar, The Bill of Rights, 266.
“Whatever its appeal might be”: Uviller and Merkel, The Militia and the Right to Arms, 267.
In Texas, armed conflict raged: James E. Bond, No Easy Walk to Freedom: Reconstruction and the Ratification of the Fourteenth Amendment (Westport: Praeger, 1997), 222–23.
“barbarous practice”: Ibid., 45.
And the Supreme Court led the judiciary: Slaughter-House Cases, 83 U.S. 36 (1873).
An even more troubling case: The Colfax massacre is described in detail in Charles Lane, The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction (New York: Henry Holt, 2008), 9–22.
The U.S. Supreme Court heard the case in 1876: United States v. Cruikshank, 92 U.S. 542, 553 (1876).
The Day Freedom Died: The justices in their conferences wanted to free the three white defendants, invalidating the indictments on technical grounds. It then shifted, and decided on broad constitutional grounds. Lane, The Day Freedom Died, 244.
The ruling hindered federal enforcement: The U.S. Supreme Court continues to cite the case. For example, it cited Cruikshank in striking down a rape victim’s lawsuit under the federal Violence Against Women Act. United States v. Morrison, 529 U.S. 598 (2000). See Nathan Newman and J. J. Gass, A New Birth of Freedom: The Forgotten History of the 13th, 14th, and 15th Amendments (New York: Brennan Center for Justice, 2004).
“The increase of crimes of blood”: James O’Meara, “Concealed Weapons and Crimes,” Overland Monthly 2 (1890), 11–15, cited in DeConde, Gun Violence in America, 71.
Dodge City, Kansas: Winkler, Gun Fight: The Battle over the Right to Bear Arms in America, 165.
It had vanished: The Civil War required a draft. In the decades that followed, the United States had little need for an army. But when it went to war against Spain in 1898, the strictures of the militia system proved inadequate. For a full discussion, see Mahon, History of the Militia and the National Guard, 138–53.
By the end of the nineteenth century, many state constitutions: A typical example is Montana’s constitution of 1889: “The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons.” Mont. Const. of 1889, art. III, § 13. State constitutional provisions on the right “to keep and bear arms” are compiled in Eugene Volokh, “State Constitutional Rights to Keep and Bear Arms,” Texas Review of Law and Politics 11 (2006): 191–217. Adam Winkler argues the forty-two state constitutional provisions point toward a “reasonable right to bear arms,” subject to limitations. See Adam Winkler, “The Reasonable Right to Bear Arms,” Stanford Law & Policy Review 17 (2006): 597–613. There is a surprising paucity of research on gun regulations in the nineteenth century. One extremely useful compilation is Mark Anthony Frassetto, “Firearms and Weapons Legislation up to the Early 20th Century” (January 15, 2013). Available at SSRN: http://ssrn.com/abstract=2200991 or http://dx.doi.org/10.2139/ssrn.2200991.
easily concealed knives and clubs: See Herbert Asbury, Gangs of New York: An Informal History of the Underworld (New York: Alfred A. Knopf, 1928).
Municipal police departments: A concise history of the development of police departments in the United States is Craig G. Uchida, “The Development of American Police: An Historical Overview,” in Roger G. Dunham and Jeffrey P. Alpert, eds., Critical Issues in Policing: Contemporary Readings (Long Grove, IL: Waveland, 2010), 17–36.
“I don’t know whether you fully understand”: H. W. Brands, T.R.: The Last Romantic (New York: Basic Books, 1997), 721.
an unlikely champion: Sullivan’s story is told in Dan Czitrom, “Underworld and Underdogs: Big Tim Sullivan and Metropolitan Politics in New York, 1889–1913,” Journal of American History 78, no. 2 (1991); Robert F. Welch, King of the Bowery: Big Tim Sullivan, Tammany Hall, and New York City from the Gilded Age to the Progressive Era (Madison, NJ: Farleigh Dickinson University Press, 2008), 143–46. Welch concludes, “all available evidence is that Tim [Sullivan’s] fight to bring firearms under control sprang from heartfelt conviction.�
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The measure required a license: The Sullivan Law is described in James B. Jacobs, Can Gun Control Work? (New York: Oxford University Press, 2002), 33; Lee Kennett and James LaVerne Anderson, The Gun in America: The Origins of a National Dilemma (Westport: Greenwood, 1975), 174–86.
“Your bill won’t stop murders”: “Bar Hidden Weapons on Sullivan’s Plea,” New York Times, May 12, 1911, http://graphics8.nytimes.com/packages/pdf/nyregion/2011/bar-hidden-weapons.pdf.
“Revolver Act”: Winkler, Gunfight, 207–8.
At this time, courts had ruled: That began to change in 1925, when the Supreme Court first applied part of the First Amendment to states. See Gitlow v. New York, 268 U.S. 652 (1925).
armed parade of German immigrants: Presser v. Illinois, 116 U.S. 252 (1886).
“We have examined the record in vain”: Miller v. Texas, 153 U.S. 585 (1894).
The “constitutional revolution” of the New Deal: See Bruce Ackerman, We the People, Volume I: Foundations (Cambridge: Belknap Press of Harvard University, 1991).
National Firearms Act of 1934: Act of June 26, 1934, c. 757, 48 Stat. 1236–40, 26 U.S.C.A. s 1132 et seq.
the National Rifle Association—then a sportsmen’s group—backed the plan: Winkler, Gun Fight, 64.
Hoover used the crackdown on armed gangsters: Curt Gentry, J. Edgar Hoover: The Man and the Secrets (New York: W. W. Norton, 1991), 178–79.
By 1938, the administration sought another gun bill: Federal Firearms Act of 1938, described in DeConde, Gun Violence in America, 145–47.
Supreme Court upheld the 1934 law: United States v. Miller, 307 U.S. 174 (1939).
The case boasted a picturesque background: For a detailed history of the case, including the colorful story of Depression-era bank robbers, see Brian L. Frye, “The Peculiar Story of United States v. Miller,” NYU Journal of Law and Liberty 3 (2008): 48–82. This history of the case, written by a law firm associate who did double duty as a documentary filmmaker, had the distinction of being cited by Justice Scalia in Heller.
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