The Founders' Second Amendment

by Stephen P. Halbrook

  The above relate to Works I have been making at the Entrance of the Town, at which they pretend to be greatly alarmed, least the Inhabitants of the Town should be enslaved, and made Hostages of, to force the Country to comply with the late Acts; a Scheme which they know is not feasible; but I believe the Works have hitherto obstructed some pernicious Projects they have had in View, which has determined me to refuse all Applications for their Demolition.83

  Meanwhile, when the Massachusetts Assembly convened, Gage denounced it as an illegal assembly. Undeterred, its members renamed themselves as the Provincial Congress. Presided over by John Hancock, the Provincial Congress resolved on October 26, 1774, that Gage’s military rule was subversive of the constitution of the province, having “thus greatly endangered the lives, liberties, and properties of its suppressed citizens:—Invaded private property, by unlawfully seizing and retaining large quantities of ammunition in the arsenal at Boston, and sundry pieces of ordnance in the same town—committed to the custody of his troops the arms, ammunition, ordnance and warlike stores of all sons, provided at the public expense for the use of the province.” It admonished that militia companies organize and elect their officers, and that at least a quarter of them must “equip and hold themselves in readiness to march at the shortest notice.” The Provincial Congress further resolved:

  That as the security of the lives, liberties and properties of the inhabitants of this province depends under providence on their knowledge and skill in the art military, and in their being properly and effectually armed and equipt; if any of said inhabitants are not provided with arms and ammunition according to law, they immediately provide themselves forthwith; and that they use their utmost diligence to perfect themselves in military skill . . . .84

  Gage declared the Provincial Congress to be an unlawful assembly and ordered it to disperse. The Congress ignored the order and continued to meet through December. A patriot with a sense of humor responded with a poem:

  Since an Assembly most unlawful,

  At Cambridge met in Congress awful,

  October last, did then presume,

  The Powers of Government t’ assume;

  And slighting British Administration,

  Dar’d rashly seek their own Salvation;

  By ordering every sturdy Farmer,

  To be prepar’d with proper Armour.

  (‘Tis what indeed the Law requires,

  But different quite from our Desires.)85

  Having the militiamen elect their own officers meant that those appointed by the Royal governor would be thrown out. The Provincial Congress further usurped the Crown’s militia power by appointing a Committee of Safety that could call out the militia when necessary.86 Gage remarked to Dartmouth about this democratization of the militia:

  The Officers of the Militia have in most Places been forced to resign their Commissions, And the Men choose their Officers, who are frequently made and unmade; and I shall not be surprized, as the Provincial Congress seems to proceed higher and higher in their Determinations, if Persons should be Authorised by them to grant Commissions and Assume every Power of a legal Government, for their Edicts are implicitly obeyed throughout the Country.87

  Gage brooded that “the whole Country [is] in a Ferment, many parts of it, I may say, actually in Arms, and ready to unite. Letters from other Provinces tell us they are violent every where, and that no Decency is observed in any Place by New-York.”88

  Gage had good intelligence: Activities encouraging the organization of militia and accumulation of arms were taking place everywhere, from Connecticut, Rhode Island, and New Hampshire, to Maryland, South Carolina, and Virginia. These militias were independent companies that no longer recognized the authority of their former officers who had been appointed by the Crown’s governors.89

  While assuring the authorities of their loyalty, the patriots made thinly veiled threats concerning their prowess with firearms. The Boston Gazette declared: “Besides the regular trained militia in New-England, all the planters sons and servants are taught to use the fowling piece from their youth, and generally fire balls with great exactness at fowl or beast.”90 Reiterating complaints about seizures of gunpowder stores, both public and private, the Gazette added: “But what most irritated the People next to seizing their Arms and Ammunition, was the apprehending six gentlemen, select men of the town of Salem, who had assembled a Town meeting. . . .”91 (That late August incident is mentioned above.)

  While some Tories scoffed at the colonists as boastful cowards who would run in a fight, Gage took the phenomenon of the increasingly armed populace very seriously. He recommended to Dartmouth a powerful army to disarm and crush the rebels:

  If Force is to be used at length, it must be a considerable one, and Foreign Troops must be hired, for to begin with Small Numbers will encourage Resistance and not terrify; and will in the End cost more Blood and Treasure. An Army on Such a Service should be large enough to make considerable Detachments to disarm and take in the Counties, procure Forrage Carriages & ca and keep up Communications, without which little Progress could be made in a Country, where all are Enemies.92

  Orders to confiscate arms arrived from London, but the job was easier said than done. Lord Dartmouth, secretary of state for America, urged General Gage in a letter dated October 17 to consider disarming the most rebellious Americans, but only if practicable:

  Amongst other things which have occurred on the present occasion as likely to prevent the fatal consequence of having recourse to the sword, that of disarming the Inhabitants of the Massachusetts Bay, Connecticut and Rhode Island, have been suggested. Whether such a Measure was ever practicable, or whether it can be attempted in the present state of things you must be the best judge; but it certainly is a Measure of such a nature as ought not to be adopted without almost a certainty of success, and therefore I only throw it out for your consideration.93

  Gage received the letter on December 3 and replied on the 15th (the same day Gage also acknowledged notice of the related ban on arms imports94), noting: “Your Lordship’s Idea of disarming certain Provinces would doubtless be consistent with Prudence and Safety, but it neither is nor has been practicable without having Recourse to Force, and being Masters of the Country.”95 This letter would later be read in the House of Commons96 and summarized in the colonial press as proof of the Crown’s ill intentions: “General Gage’s Letters being read in the House of Commons, it appears from one of them that it had been recommended to him by Lord Dartmouth to disarm some of the Colonies, which in his Opinion, was not practicable, till he was Master of the Country.”97

  Every day that passed, however, it became less likely that Gage’s forces would “become masters of the country” and be able to “disarm certain provinces.” Colonists were arming themselves and organizing into independent militias to oppose the standing force. Josiah Quincy’s celebrated tome referred to “a well regulated militia composed of the freeholders, citizens, and husbandmen, who take up arms to preserve their property as individuals, and their rights as freemen.”98 He asked: “Who can be surprised, that princes and their subalterns discourage a martial spirit among the people, and endeavour to render useless and contemptible the militia, when this institution is the natural strength, and only stable safeguard, of a free country?”99 After all, “the supreme power is ever possessed by those who have arms in their hands, and are disciplined to the use of them.”100

  Other popular works of the day similarly emphasized the Americans’ affinity for popular armed self-defense. Daniel Dulany of Maryland referred to “democratical governments, where the power is in the hands of the people and where there is not the least difficulty or jealousy about putting arms into the hands of every man in the country.”101 The Americans “have several hundred thousands and perhaps near a million men capable of bearing arms in their own defence . . . .”102 In an oration “humbly dedicated” to the Earl of Dartmouth, John Allen warned that

  you will find, my Lord, that the Am
ericans will nor submit to be slaves, they know the use of the gun, and the military art, as well as any of his Majesty’s troops at St. James’s; and where his Majesty has one soldier, who art in general the refuse of the earth, America can produce fifty free men, and all volunteers, and raise a more potent army of men in three weeks, than England can in three years. But God forbid that I should be thought to aim at rousing the Americans to arms, without their rights, liberties and oppression call for it.103

  For his own part, Dartmouth heard rumors that Gage was being too soft on the Boston militia. The secretary admonished the general that “upon no account suffer the Inhabitants of at least the Town of Boston, to assemble themselves in arms on any pretence whatever, either of Town guard or Militia duty; and I rather mention this, as a Report prevails that you have not only indulged them in having such a Guard, but have also allowed their Militia to train and discipline in Faneuil Hall.”104 Actually, Gage did make “proposals for maintaining good order and harmony between the soldiers and town people,” but he did not state that the “guards” and “marshals” that would help keep order would be militia and did not authorize militia training.105

  Moreover, the Redcoats did seek to suppress militia activities in Boston, albeit not necessarily with success. In a December incident, it was reported that

  a party of the militia being at exercise on Bosron common, a party of the army surrounded them and took away their fire arms; immediately thereupon a larger party of the militia assembled, pursued the Army, and retook their fire arms. Whereupon the Governor ordered the man of war to fire upon the Town, which was instantly obeyed; several houses were damaged, and only 6 people killed.106

  While the allegation about deaths proved to be false, the obvious point of the story was that the militia could and would retain their arms against attempted seizure by the standing army. And the cancer had spread to the other colonies. Virginia’s Governor Dunmore wrote to Dartmouth on Christmas Eve that every county “is now arming a Company of men, whom they call an Independent Company, for the avowed purpose of protecting their Committees, and to be employed against Government, if occasion require.” These independent companies were “universally supported” and “set themselves up superiour to all other authority, under the auspices of their Congress.”107

  As is usual in police search and seizure operations, a cat-and-mouse game was played in which the searchers and the searchers exchanged charges and countercharges. A Tory queried, “who carried cannon off privately in a boat to a mill-pond, and when detected declared it to be nothing but a boat-load of old iron?”108 A patriot—whose comrades were arming themselves as rapidly as possible—depicted them as penmen:

  We are told, that it is an undoubted act, that the supposed boxes of small arms, lead, & c. which were lately seized by the custom-house officers at New York, and caused so much disturbance there, turns out to be—What?—Why only a few boxes of Printing Types! Aye, says a wag, and what was the Gun-Powder?—Why truly, nothing but two cakes of Printing Ink!109

  For the Loyalists, the troublemakers were smugglers feigning innocence. By contrast, the patriots depicted themselves as victims of repressive measures executed by overzealous soldiers assigned to ferret out any potential violation, yielding only innocent objects.

  Still, there is no denying that the patriots sought to scare the British with talk about the colonists’ expertise with arms. A pamphlet printed all over the colonies and even England credited with convincing the British of this expertise was written by Charles Lee, who was influential in the Continental Congress.110 A key passage states: “The Yeomanry of America have, besides infinite advantages, over the peasantry of other countries; they are accustomed from their infancy to fire arms; they are expert in the use of them:—Whereas the lower and middle people of England are, by the tyranny of certain laws, almost as ignorant in the use of a musket, as they are of the ancient Cacapulta.”111

  Lee had served in the British army, and Dartmouth wrote Gage to keep an eye on him and obstruct his efforts, explaining: “I am told that Mr Lee, a Major upon half pay with the rank of Lieutenant Colonel, has lately appeared at Boston; that he associates only with the Enemies of Government; that he encourages the discontents of the people by harangues and publications; and even advises to Arms.”112 After the War for Independence began, Lee would be appointed second major-general in the Continental army.

  None other than John Adams expanded on the theme of the armed citizen in his influential Novanglus series, a refutation of former Whig and now Tory “Massachusettensis” (Daniel Leonard), who argued that Parliament’s authority extended to the colonies. In response to the suggestion that the colonies could not defend themselves, partly because the colonies south of Pennsylvania had no men to spare, Adams wrote:

  But we know better; we know that all those colonies have a back country, which is inhabited by a hardy, robust people, many of whom are emigrants from New England, and habituated, like multitudes of New England men, to carry their fuzees113 or rifles upon one shoulder, to defend themselves against the Indians, while they carry their axes, scythes, and hoes upon the other, to till the ground.114

  Those same colonies (except Maryland) furnished men in the French and Indian War—one Virginia regiment was “equal to any regular regiment in the service”—and would exert themselves all the more in an “unnatural, horrid war” against them waged by the Crown. Adams proceeded to the next objection:

  But, “have you arms and ammunition?” I answer, we have, but if we had not, we could make a sufficient quantity of both. . . . We have many manufacturers of fire-arms now, whose arms are as good as any in the world. Powder has been made here, and may be again, and so may saltpetre. . . . We have all the materials in great abundance, and the process is very simple. But if we neither had them nor could make them, we could import them.115

  Actually, the colonists imported most gunpowder but made it in smaller quantities by older and simpler, albeit less safe, methods. These methods required that the ingredients be pounded while kept moist, particularly with alcohol and urine (preferably that of wine consumers).116

  As for the Crown’s embargo against import of arms into the colonies, Adams averred that it took many ships just to blockade Boston harbor, yet the American coastline had countless bays, harbors, creeks, and inlets. “Is it to be supposed, then, that the whole British navy could prevent the importation of arms and ammunition into America, if she should have occasion for them to defend herself against the hellish warfare that is here supposed?”117

  And then there was the armed populace, organized in decentralized militia rather than as a force under the tutelage of the Royal government:

  “The new-fangled militia,” as the specious Massachusettensis calls it, is such a militia as he never saw. They are commanded through the province, not by men who procured their commissions from a governor as a reward for making themselves pimps to his tools, and by discovering a hatred of the people, but by gentlemen, whose estates, abilities, and benevolence have rendered them the delight of the soldiers . . . . The plausibly Massachusettensis may write as he will, but in a land war, this continent might defend itself against all the world.118

  In the following issues of Novanglus, John Adams refuted the Tory claim that the colonists were engaged in rebellion. “Opposition, nay, open, avowed resistance by arms, against usurpation and lawless violence, is not rebellion by the law of God or the land.”119 Relying on the natural rights philosophy, Adams averred that “there are tumults, seditions, popular commotions, insurrections, and civil wars, upon just occasions as well as unjust.”120 He quoted Hugo Grotius’ dictum that “it is not repugnant to the law of nature, for any one to repel injuries by force.”121 “A tyrant . . . may lawfully be dethroned by the people,” according to Samuel von Pufendorf.122 And Algernon Sidney affirmed: “Neither are subjects bound to stay till the prince has entirely finished the chains which he is preparing for them, and put it out of their power to oppose.”123 This class
ic Whig theory would find expression the following year in the Declaration of Independence.

  There was no denying that the American Whigs were arming themselves for what they considered to be just resistance to tyranny. Peter Oliver, a prominent Tory and former Chief Justice of the Massachusetts Superior Court, recalled: “The People began now to arm with Powder & Ball, and to discipline their Militia. Genl. Gage, on his Part, finding that Affairs wore a serious Aspect, made Preparations for Defence.” He added, “The People were continually purchasing Muskets, Powder & Ball in the Town of Boston, & carrying them into the Country; under the Pretence that the Law of the Province obliged every Town & Person to be provided with each of those Articles. They urged another also, that there was Danger of a French War, which put them upon their Guard.” Oliver described Gage’s reaction as follows:

  A Person who was more than stark Blind might have seen through such pitifull Evasions. Genl. Gage therefore took wise Precautions; he put a Stop to the carrying off any more; & as all warlike Stores, except private Property, are vested in the King, the Govr. therefore seized upon some of the Magazines, & secured the Powder under the Protection of his Troops. This provoked the People, & some of the Smuglers sent to the Dutch at Eustatia, & got a Recruit of Powder. They also secured Cannon from Vessells, & some of the Kings Forts, & acted with great Vigour in all their Preparations; & thus passed the Remainder of the Year 1774, in Offence on one Side & in Defence on the other.124

  As noted in the January 31 diary entry of Lieutenant Frederick MacKenzie of the Royal Welch Fusiliers, “the people are evidently making every preparation for resistance. They are taking every means to provide themselves with Arms; and are particularly desirous of procuring the Locks of firelocks, which are easily conveyed out of town without being discovered by the Guards.”125 In those days, a firearm (or firelock) was referred to as having a “lock, stock, and barrel”—the lock being the ignition device that shot sparks into the charge in the barrel to ignite the powder, expelling the ball.