The Founders' Second Amendment

by Stephen P. Halbrook

  The case had the potential of sparking dangerous rioting—the defendants were denied a trial by jury, and impressment was especially hated. However, a clash between the authorities and the colonists was averted when the court, on June 17, acquitted all of the defendants on the basis that the press gang had no impressment warrant, and thus the killing was justifiable homicide in self-defense.72

  Three weeks before the verdict was handed down, a new session of the House of Representatives of the Massachusetts Bay Colony convened in Boston. Its first act was to demand that Governor Bernard order the removal of the British troops surrounding the State House. Bernard responded that he had no authority to remove the troops, thereby suggesting to the patriots that the military held sway over the civil authority.73 The House replied that a standing army quartered among the loyal subjects of Boston was “contrary to act of Parliament, and to every principle of reason, justice and equity,” and that a military execution of the laws was “inconsistent with the Spirit of a free Constitution.” Such a military execution of laws was unnecessary:

  for the body of the people, the Posse Comitatus will always aid the magistrate in the execution of such laws as ought to be executed carries with it the strongest presumption that it is an unjust law; at least that it is ensalutary.—It cannot be their law; for by the nature of a free Constitution, the people must consent to laws, before they can be obliged in conscience to obey them.74

  In short, a law based on the consent of the people could and would be enforced, if necessary, by the posse comitatus, the armed populace. A law requiring enforcement by a standing army was not based on the consent of the people.

  The House refused to carry on its business while the troops remained. After several weeks, Bernard adjourned the assembly to Cambridge, where the session finally began. But tensions continued to escalate until Bernard abruptly canceled the session and dissolved the House. He then sailed to England, never to return.75

  In September an attempt was made to assassinate James Otis, one of Boston’s most influential patriots. Otis had published a scathing criticism of the commissioners of customs in the Boston Gazette. John Robinson, one of the commissioners Otis had denounced, allegedly led a gang of hooligans with swords and clubs in an assault on Otis in a coffeehouse.76 Otis barely escaped with his life but suffered a sword wound to his head and was left mentally incapacitated.77

  There were clashes between colonists and Redcoats, including occasional deaths, in the fall and winter of 1769–1770, and they took place not just in Boston but also in New York City.78 The violence reached a head in the Boston Massacre of March 5, 1770.

  The trouble began when a sentry at the Customs House struck a troublesome boy with his gun. A crowd gathered and, shouting “kill him,” began pelting the guard with snowballs and other objects. Captain Thomas Preston and seven soldiers from the nearby Main Guard station came to the rescue. Thereupon Crispus Attucks, described as a “mulatto,” led the growing crowd in an attack on the Redcoats with snowballs, ice, oyster shells, and sticks. Yelling “you lobster scoundrels, fire if you dare,” some struck at the solders with clubs and a cutlass. The soldiers then fired, killing Attucks and four others and wounding six more.79

  The next day, a body of citizens appointed a committee, led by Samuel Adams, to demand that the governor, Thomas Hutchinson, order the immediate removal of the troops. Hutchinson responded that he had no such authority. However, Colonel Dalrymple recognized the explosive situation for what it was and decided to remove his troops under his own authority. Within four days, the Redcoats had all been evacuated from Boston and quartered at Castle William.80 The soldiers, General Gage candidly quipped to Lord Hillsborough, “were of no other use in the Town of Boston, for the People were as Lawless and Licentious after the Troops arrived, as they were before.”81

  It befell John Adams and Josiah Quincy, the colony’s ablest lawyers, to defend the British soldiers who were charged with unlawful homicide. Adams began his celebrated opening argument with the words: “I am for the prisoners at the bar, and shall apologise for it only in the words of the Marquis Beccaria: ‘If I can but be the instrument of preserving one life, his blessings and tears of transport, shall be sufficient consolation to me, for the contempt of all mankind.’”82

  Both prosecution and defense attorneys stipulated that the Bostonians had the right to arm themselves for self-defense. The issue was whether the inhabitants or the soldiers were the aggressors.83 Crown prosecutor Robert Treat Paine argued that due to the long-term abusive conduct of the soldiers, “the most peaceable among us had ... found it necessary to arm themselves with heavy Walking Sticks or Weapons of Defence when they went abroad.”84 Similarly, co-prosecutor Samuel Quincy contended that when the soldiers sallied out “with clubs, cutlasses, and other weapons of death; this occasioned a general alarm; every man therefore had a right, and very prudent it was to endeavor to defend himself if attacked; this accounts for the reason of Dr. Young or any one inhabitant of the town having a sword that evening ....”85

  The right of citizens to arm themselves against abusive soldiers was also enunciated in the press. Samuel Adams argued that the slain Mr. Attucks “was leaning upon his stick when he fell, which certainly was not a threatening posture: It may be supposed that he had as good right, by the law of the land, to carry a stick for his own and his neighbor’s defence, in a time of danger, as the Soldier who shot him had, to be arm’d with musquet and ball, for the defence of himself and his friend the Centinel.”86

  As for the soldiers, John Adams upheld the right of “Self Defence, the primary Canon of the Law of Nature.” As to the populace, Adams conceded on the authority of Hawkins, the great English jurist: “Here every private person is authorised to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defence, not for offence ....”87

  The court’s charge to the jury asserted the traditional duty of private persons to respond to the hue and cry and to carry arms: “It is the duty of all persons (except women, decrepit persons, and infants under fifteen) to aid and assist the peace officers to suppress riots & c. when called upon to do it. They may take with them such weapons as are necessary to enable them effectually to do it.”88

  The evidence showed that Preston never fired a shot but was in conflict on whether the sergeant ordered his men to fire. Preston was tried first and was acquitted of murder. The other soldiers were tried separately, and all were likewise acquitted, except that the soldier who shot Mr. Attucks was convicted of manslaughter.89 While this only fanned the flames kept up by the hotheads, the spectacle of the Boston Massacre trial posed ironies. Patriot lawyers prosecuted the soldiers on behalf of the Crown, and other patriot lawyers defended the soldiers. Citizens of Boston had been slain, but Boston juries acquitted all the soldiers of murder.

  While this was the leading criminal trial of the epoch, the right to have arms for self-defense was also enunciated in other trials of the period. Defending an assault case in 1771, James Otis (co-counsel with Adams and Quincy) relied on “Orat[ion] pro Milone beginning.”90 This referred to the following passage from Cicero’s defense of Titus Annius Milo in ancient Rome on murder charges: “When arms speak, the laws are silent; they bid none to await their word .... And yet most wisely, and, in a way, tacitly, the law authorises self-defence .... The man who had employed a weapon in self-defence was not held to have carried that weapon with a view to homicide.”91

  The early 1770s emerged as the quiet before the storm. There was more saber rattling than actual conflict. The major Townshend Act duties except that on tea were repealed in 1770, leading to a relatively calm period of three years. Passage of the Tea Act in 1773 led to renewed rumblings.92 Reportedly “Governor Hutchinson, in order to enforce the maxims of administration, had recourse to the military; and that the House of Representatives, in behalf of the people, resolved such a step to be rebellion against their constitutional rights and privil
eges, and determined to oppose force by force, by ordering out the Militia.” A commentator in the newspaper wrote that this assertion was “intended to show the true spirit of the contending parties in America, rather than the truth of Fact.” But it could be prophetic, given the course of events: “It is a common proverb, that many true words are spoken in jest, and it may be relied upon by all slave makers, that the people of this province are too enlightened and spirited, much longer to submit to Tyrants.”93

  But there are two sides to every controversy. Governor Thomas Hutchinson has been described as following moderate policies which appeased neither the Ministry nor the American radicals.94

  The colonists continued to speak about armed resistance, and not necessarily in a veiled fashion. “Massachusettensis,” pseudonym of Daniel Leonard, a prominent Massachusetts lawyer, penned several essays pleading America’s cause. While he would soon transform into a Tory, as a Whig he made the following inflammatory remarks:

  Men combined to subvert our civil government, to plunder and murder us, can have no right to protection in their persons or properties among us; they have by their attempts upon our liberty, put themselves in a state of war with us, as Mr. Locke observes, and being the aggressors, if they perish, the fault is their own. “If any person in the best condition of the state, demands your purse at the muzzle of his pistol, you have no need to recur to law, you cannot give, i.e. immediate security against your adversary; and for that reason, viz. because the law cannot be applied to your relief, you make your own defence on the principles of natural law, which is now your only rule, and his life is forfeited into your hands, and you indemnified if you take it, because he is the first and a dangerous aggressor.” This rule applies itself to states, and to those employed by them to distress, rob or enslave other states; and shall property be secure where even life is forfeited?95

  This analogy from John Locke was unmistakable in distinguishing the British highwayman from the innocent colonist who would resist.

  A common thread that runs through the above events and the related expression of patriotic opinion is that the citizen has a right to bear arms in self­defense and in defense of the Commonwealth. Reverend Simeon Howard, a Harvard graduate and minister, enunciated these concepts from the pulpit in his celebrated sermon to the Ancient and Honourable Artillery Company in Boston in June of 1773.

  The universal principle of self-preservation, Reverend Howard averred, “allows of every thing necessary to self-defence, opposing force to force, and violence to violence.”96 Christianity is fully consistent with this fundamental law:

  Defending ourselves by force of arms against injurious attacks is a quite different thing from rendering evil for evil. The latter implies doing hurt to another, because he has done hurt to us; the former implies doing hurt to another, if he is hurt in the conflict, only because there is no other way of avoiding the mischief he endeavours to do us: the one proceeds from malice and revenge; the other merely from self-love, and a just concern for our own happiness, and argues no ill will against any man.97

  Given that it is right and necessary for citizens to defend themselves, they must acquire the means to do so: “A people who would stand fast in their liberty, should furnish themselves with weapons proper for their defence, and learn the use of them.”98 No matter how numerous a people may be, “if they are unskilled in arms, their number will tend little more to their security, than that of a flock of sheep does to preserve them from the depredations of the world.”99

  Not surprisingly, Howard asserted the superiority of a militia to a standing army. Standing armies “propagate corruption and vice where they reside, they frequently insult and abuse the unarmed and defenceless people: Where there is any difference between rulers and subjects, they will generally be on the side of the former, and ready to assist them in oppressing and enslaving the latter ....” He continued:

  But rulers of arbitrary disposition, have ever endeavoured to have a standing army at their command, under a pretence indeed, of being for the safety of the state, though really with a view of giving efficacy to their orders.... To have an army continually stationed in the midst of a people, in time of peace, is a precarious and dangerous method of security.100

  Far safer “is to have the power of defence in the body of the people, to have a well regulated and well-disciplined militia.” If the people themselves are armed, they will defend their country. A force made up of men of property, who have always worked, “will generally equal the best veteran troops, in point of strength of body and firmness of mind, and when fighting in defence of their religion, their estates, their liberty, and families, will have stronger motives to exert themselves, and may, if they have been properly disciplined, be not much inferior to them in the skill of arms.”101

  Even so, Howard insisted that caution “be used in constituting a militia, that it may answer the end for which it is designed, and not be liable to be made an instrument of tyranny and oppression.” The state would have the power to call out the militia, if the safety of the people compelled it. “But this power should be so limited and restrained, as that it cannot call it unnecessarily, oblige it to commit violence or oppression upon any of the subjects.”102 The capacity for evil is inherent in mankind, although some institutions promote it and others minimize it.

  As the above demonstrates, the people of Boston experienced during 1768–1773 the initial shock of invasion by military force, followed by escalating violence culminating in the Boston Massacre, and then a period of uncertain but false respite. The right of the inhabitants to be armed was perceived to be in peril, but the conflict had not escalated to a consummation of their disarming. The year 1774 would open a new chapter in what appeared to be escalating into an irresistible conflict between the colonists and the Crown.

  CHAPTER 2

  From the Tea Party to the Powder Alarm

  ON DECEMBER 16, 1773, patriots disguised as Movawk Indians gathered at Boston harbor, boarded three vessels, broke open 342 chests, and dumped the contents—forty-five tons of tea—into the ocean. The whooping “Indians” were “cloath’d in Blankets with the head muffled, and copper color’d countenances, being each arm’d with a hatchet or axe, and pair pistoles,” wrote Boston merchant John Andrews.1 Andrews had written two weeks before the Tea Party that the inhabitants unanimously opposed the landing of the tea, and “‘twould puzzle any person to purchase a pair of p——Is [pistols] in town, as they are all bought up, with a full determination to repell force by force.”2

  The raid, thought to have been led by John Hancock, was in protest of the recently passed Tea Act, which sought to give the British East India Company a monopoly on the tea trade and to suppress importation of the highly taxed Dutch tea, which most colonists consumed and which was widely smuggled. The Sons of Liberty depicted the scheme as yet another instance of taxation without representation.

  Parliament responded to the Boston Tea Party by enacting the Intolerable Acts. The Boston Port Act closed Boston’s port altogether until the colonists paid full reparations for the destroyed tea. Under the Quartering Act, British troops returned to Boston—they had been removed from the town after the 1770 massacre—and British ships blockaded the harbor. The Massachusetts Regulating Act revoked the Massachusetts Province Charter of 1691 and gave the colonial governor unprecedented powers, including absolute authority over all judicial and official appointments and removals. The town selectmen, who were traditionally elected by the populace, could no longer call a meeting at any time, but must instead get the governor’s permission. Jurors, formerly selected by freeholders and inhabitants of the towns, were now selected by sheriffs, who were in turn appointed by the governor.3

  The Crown would appoint the Massachusetts Council in lieu of the former council elected by the legislature. Thirty-six men were appointed by “mandamus”—an order commanding a supposed legal duty—to serve in this council, but many of them refused, and others were persuaded or intimidated into resigning.4 T
hese “Mandamus Counselors” became known to the patriots as “the Divan,” after the privy council of the Ottoman Empire. These Turkish rulers were considered perhaps the world’s most absolute despots.

  To heap coals on the fire, Thomas Hutchinson resigned as governor and into his shoes stepped General Thomas Gage, the commander in chief of the British Army in North America. William Legge, Earl of Dartmouth, secretary of state for America, informed Gage of his appointment as captain general and governor in chief of His Majesty’s Province of Massachusetts Bay. Lord Dartmouth stressed the imperative of enforcing the Boston Port Act, adding with typical British understatement:

  [Y]our Authority as the first Magistrate, combined with your Command over the King’s Troops, will, it is hoped, enable you to meet every opposition, and fully to preserve the public peace, by employing those Troops with Effect, should be madness of the People on the one hand, or the timidity or want of Strength of the peace officers on the other hand, make it necessary to have recourse to their assistance.5

  Four regiments were ordered from England and Ireland to Boston, and Gage was authorized to declare martial law and to “repel force and violence by every means within his reach.”6 Regarding the Regulating Act, Dartmouth explained to Gage:

  The Act for better Regulation of the Government of the Province of Massachusetts Bay, provides, that from the first of August next, all Elections of the Council under the Authority of the Charter, shall be void, and that for the future the Council shall be appointed by the King.