The British and their Tory allies repressed the patriotic press, and those dedicated to American independence replied in kind, probably also netting those who eschewed conflict of any kind. In April 1776, for instance, one Samuel Loudon identified persons who burned his pamphlets and then published Reflections on the Crime of Pamphlet Burning, stating: “The freedom of the press is now insulted and infringed by some zealous advocates for liberty. A few more nocturnal assaults upon printers may totally destroy it, and America in consequence may fall a sacrifice to a more fatal despotism than that with which we are threatened.”35
Indeed, thought crimes were the order of the day. New York’s “An Act more effectually to punish adherence to the King” (1781) punished any person who “by preaching, teaching, speaking, writing, or printing, declare, or maintain, that the King of Great-Britain hath, or of Right ought to have, any Authority or Dominion, in or over this State, or the Inhabitants thereof,” or who communicated similar thoughts. The crime was a felony punishable by death, which could be avoided by three years of impressment on an American ship of war.36
Proceedings typically involved a trial by a committee of safety, which decided the policy, determined who was in violation without any notice or opportunity for hearing by the accused, and condemned the accused as a traitor, whose firearms, real estate, and other property could be seized and forfeited. Often, the targeted person’s violation was merely that he had not taken a test oath or had not affirmatively advocated independence.37
The Founders would later adopt a Constitution and Bill of Rights that rose above their own as well as their enemies’ violations of rights. Bills of attainder would be absolutely prohibited. The fact that members of that generation seized arms from perceived traitors no more denigrates what would become the Second Amendment than the facts that they tarred and feathered Royalist henchmen or that they suppressed the pro-Crown press indicates that they really did not believe in due process or a free press. Having been denied such rights during peacetime and willing to wage war to regain them, the patriots found themselves in a life-or-death struggle.
Another significant feature of this struggle was the cat-and-mouse game of the Americans attempting by any means to obtain arms and ammunition and of the British attempting to seize them.38 Gage wrote to Dartmouth in the fall of 1775 :
Governor Bruere has sent Intelligence of Vessels from the Continent going to Bermuda, and carrying away a Quantity of Powder from the Magazine, which some of the Islanders had assissted in forceing in the Night.
We hear that the Colonies have fitted out several armed Vessels and sent them to Europe and the West-Indies in Search of Ammunition, and there is Advice that a Privateer from South Carolina has plundered an Ordnance Ship off the Barr of St Augustine, where She was bound with Military Stores.39
A typical issue of the Virginia Gazette in 1776 noted: “They write from St. Maloes, that the Commander in Chief of the maritime department there had ordered four American vessels laden with muskets, pistols, swords, bayonets, & c. to reland their cargoes and proceed home in ballast.” The seizure of American arms on a vessel at St. John’s, Antiqua, was reported.40 When the British fleet descended on Martha’s Vineyard in 1778, its commanders demanded “all the arms, ammunition, and accouterments on the island.”41 Pistols, muskets, and blunderbusses were common arms that were eagerly sought after and continued to be sold on the civilian market.42
By 1777, confident of a British military victory, Colonial Undersecretary William Knox circulated to members of the ministry a comprehensive policy entitled “What Is Fit to Be Done with America?” Besides a state church, unlimited tax power, a standing army, and a governing aristocracy, the plan anticipated: “The Militia Laws should be repealed and none suffered to be reenacted, & the Arms of all the People should be taken away, . . . nor should any Foundery or manufactuary of Arms, Gunpowder, or Warlike Stores, be ever suffered in America, nor should any Gunpowder, Lead, Arms or Ordnance be imported into it without Licence. . . . ”43
But it was too late for that, and a populace composed of partisans, militias, independent companies, and the Continental army (with help from the French) would win the American Revolution.44 Don Higginbotham wrote about the American militia: “Seldom has an armed force done so much with so little—providing a vast reservoir of manpower for a multiplicity of military needs, fighting (often unaided by Continentals) in the great majority of the 1,331 land engagements of the war.”45
Not unexpectedly, there were episodes in the Revolutionary War when the militia proved unreliable. The military history of the war and the issue of the efficiency of the militia compared with the Continental Army are beyond the scope of this study.46 In paying tribute to “a well regulated militia” in state declarations and in the Second Amendment, the Founders would seek to promote “the security of a free State,” not just military efficiency.
Henry Lee, lieutenant colonel commandant of the partisan legion, a relative of Algernon Sidney and father of Robert E. Lee, provided an example of such perceptions in his Memoirs of the War. The Americans were inferior in arms “imputable to our poverty”47 and to British repression, and were “a corps of peasants . . . defectively armed with fowling pieces, and muskets without bayonets.”48 But “the American war presents example of first-rate courage occasionally exhibited by corps of militia, and often with the highest success.”49 Such was the effectiveness of “armed citizens vying with our best soldiers”50 that “our upper militia were never alarmed in meeting with equal numbers of British infantry,”51 and it was “chiefly undisciplined militia” that forced the surrender of Burgoyne’s veterans in 1777.52
Consistent with the above, Thomas Jefferson attributed American successes in part to their superior marksmanship. He sent to Giovanni Fabbroni a list of the number of enemy casualties beginning with Lexington in April 1775 through November 1777, explaining he could not enclose comparable data on the Americans but that:
. . . [I]t has been about one half the number lost by them, in some instances more, but in others less. This difference is ascribed to our superiority in taking aim when we fire; every soldier in our army having been intimate with his gun from his infancy.53
The War for Independence might be considered as a people’s war in which the armed populace defeated the world’s greatest empire. In theory and in practice, the American Revolution had both as an objective and as an indispensable means the right to keep, bear, and use arms to check governmental oppression.
But only feeble efforts were made to adopt, and even feebler efforts made to give life to, a federal authority over what the Declaration of Independence declared to be “free and independent states.” The formal structure approved as the Articles of Confederation essentially provided that the Continental Congress could impose requirements on the states but allowed no mechanism to enforce its will.
The Continental Congress agreed to the Articles of Confederation in 1777, but they were not operable until 1781. A look at the Articles is useful as background to what would become the federal Constitution.
The Articles began with a version of the future Constitution’s Tenth Amendment: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”54
The Articles had no bill of rights, and none was appropriate in that the Congress had authority only over the states and not individuals. The states regulated individual conduct, and hence recognition of the rights of persons was a matter for the states.
However, the Articles did declare a broad concept of rights throughout the states: “The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States. . . . ”55 These privileges and imm
unities were not specified, but they were limited to “free citizens.”
The above was in part a guarantee against discriminatory action imposed by states on residents of other states. No other reference to individual rights was made, not surprisingly in that the Congress had few powers. Free speech was declared only for members of Congress : “Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress. . . . ”56
States were prohibited from keeping vessels of war or any body of forces in peacetime without the consent of Congress. However, “every State shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.”57 While each state required militiamen generally to provide their own arms, this provision for arms in public stores would have made arms available to those who could not afford or otherwise obtain them.
In the raising of armed forces, Congress made the decisions, and the states were responsible to carry them out. As to land forces raised by a state “for the common defence,” officers of or under the rank of colonel were appointed by the state.58 A similar provision would find its way into the Constitution’s militia clause, which reserved the appointment of officers to the states.
However, the Congress appointed the officers (except regimental officers) of the land forces in the service of the United States.59 Congress also had power to designate the number of land forces, and to requisition each state for its quota, in proportion to the state’s number of white inhabitants. The state legislature would then appoint regimental officers, and “raise the men and cloath, arm and equip them in a soldier like manner,” at the expense of the United States.60
The nature of the militia in the above system was clarified in the report of a committee to the Continental Congress dated October 23, 1783. It averred:
[I] n considering the means of national defence, Congress ought not to overlook that of a well regulated militia; that as the keeping up such a militia and proper arsenals and magazines by each State is made a part of the Confederation, the attention of Congress to this object becomes a constitutional duty; that as great advantages would result from uniformity in this article in every State, and from the militia establishment being as similar as the nature of the case will admit to that of the Continental forces, it will be proper for Congress to adopt and recommend a plan for this purpose.61
The militia consisted of “all the free male inhabitants in each state from 20 to fifty,” divided between the two classifications of married and unmarried men, except those exempt under state law. “Those who are willing to be at the expence of equipping themselves for Dragoon service to be permitted to enter into that corps, the residue to be formed into Infantry. . . . ” All were to provide their own arms:
Each officer of the Dragoons to provide himself with a horse, saddle &c. pistols and sabre, and each non-commissioned officer and private with the preceding articles and these in addition, a carbine and cartouch box, with twelve rounds of powder and ball for his carbine, and six for each pistol.
Each officer of the Infantry to have a sword, and each non-commissioned officer and private, a musket, bayonet and cartouch box, with twelve rounds of powder and ball.62
“These united colonies are, and of right ought to be free and independent states,” proclaimed the Declaration of Independence. And independent states they became, each deciding her own constitution and bill of rights, or declining to adopt either or both. The next two chapters tell the story of how, at the state level, constitutions were framed and the great rights of mankind proclaimed or otherwise recognized, particularly the right to keep and bear arms.
CHAPTER 6
“That the People Have a Right”
THE REVOLUTION EVOLVED from a defensive war in 1775 to a war for independence in 1776. Once the complete break with Great Britain was decided, the states began to hold conventions and to adopt forms of government. Some framed constitutions with declarations of rights, others wrote constitutions that contained no bills of rights, and still others simply continued to operate under their colonial charters and adopted neither a constitution nor a declaration of rights. Regardless of whether rights were formalized in written instruments, supporters of the Revolution shared some fundamental conceptions of basic rights.1 These generally included freedom of the press, the right to keep and bear arms and other familiar liberties.
The following traces the actions of the states that adopted constitutions during 1776. Those states were, in chronological order, South Carolina, Virginia, New Jersey, Pennsylvania, Delaware, Maryland, and North Carolina. The next chapter details actions by the other states that took place during 1777 through 1784.
SOUTH CAROLINA
South Carolina was the first of the colonies to adopt a constitution. On February 11, 1776, the Provincial Congress elected an eleven-man committee to prepare a form of government.2 In early March, committee member Charles Cotesworth Pinckney delivered a report on the proposed constitution.3 Deliberations ensued, and on March 26 the assembly adopted a constitution for the state of South Carolina.
The right to have arms and to use them defensively was expressed in the Constitution’s preamble as follows:
Hostilities having been commenced in the Massachusetts Bay, by the troops under command of General Gage, whereby a number of peaceable, helpless, and unarmed people were wantonly robbed and murdered, and there being just reason to apprehend that like hostilities would be committed in all the other colonies, the colonists were therefore driven to the necessity of taking up arms, to repel force by force, and to defend themselves and their properties against lawless invasions and depredations.4
Although the Constitution contained no bill of rights, no precedent existed yet in any of the newly-independent states for such a declaration. Pinckney would later explain that “we had no bill of rights inserted in our Constitution; for, as we might perhaps have omitted the enumeration of some of our rights, it might hereafter be said we had delegated to the general government a power to take away such of our rights as we had not enumerated ....”5
When the Provincial Congress adopted the Constitution, it also elected its president, William Henry Drayton, as the chief justice of the Supreme Court. Drayton was also a member of the Continental Congress. His son wrote: “Mr. Drayton always had about his person, a dirk and a pair of pocket pistols; for the defense of his life.”6
Chief Justice Drayton soon delivered the first charge to the grand jury of Charleston District. In the course of this patriotic oration he warned that the King of England “will effectually disarm the Colony.”7 Drayton accused George III of “the violation of the fundamental laws” in the same manner as James II had done.8 The grand jurors were then reminded of the charges against James in the English Bill of Declaration of 1689, including: “By causing several good subjects, being Protestants, to be disarmed, at the same time when Papists were both armed and employed contrary to law.”9
Indeed, the English Declaration of Rights, which “declares the Rights of the Citizens,” remained in effect in South Carolina.10 Under the category “Subjects Arms” the following appeared: “The Subjects which are Protestants may have arms for their Defence suitable to their Conditions, and as allowed by Law.”11
The American Revolution in South Carolina would be waged more by armed partisans than by a regular army.12 John Drayton wrote that “a spirit of independence, which their fathers had brought with them from England, gave to the inhabitants of those Colonies a knowledge of arms, and a spirit of intolerant of oppression.”13 On the eve of the Revolution a South Carolina writer urged: “The inhabitants of this colony ... ought therefore never to be without the most ample supply of arms and ammunition ....”14
The South Carolina Provincial Congress had declared in 1775 “that solely for the Preservation and Defense of our Lives, Li
berties, and Properties, we have been impelled to associate, to take up Arms.”15 It required “that every person liable to bear arms, shall appear completely armed, once in every fortnight” for militia exercises.16 The Congress also adopted measures to encourage a “regiment of Rangers ... composed of expert Rifle-men ... ; each man, at his own expense to be constantly provided with a good horse, rifle, shot-pouch and powder-horn, together with a tomahawk or hatchet.”17
Slaves were generally deprived of rights. South Carolina laws enacted in the 1740s and reenacted in 1783 included prohibitions on slaves being taught to write,18 to assemble, and to travel,19 and “to carry or make use of fire-arms, or any offensive weapons whatsoever,” unless “in the presence of some white person” or with a license from the master.20 A slave could shoot birds on the plantation without a license, “lodging the same gun at night within the dwelling-house of his master, mistress or white overseer.”21
Militiamen were subjected to patrol duty to guard against a slave insurrection.22 Patrols were required to apprehend slaves outside their plantation without permission and had “power to search and examine all negro-houses for offensive weapons and ammunition.”23
While slaves had few rights, citizens had many, even though not formalized in the constitution.
As will be seen, a formal statement of rights would be seen as necessary elsewhere. Virginia, the second state to adopt a constitution in 1776, became the first to adopt a declaration of rights.
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