The Founders' Second Amendment

by Stephen P. Halbrook

VIRGINIA

  Virginia was the first of all the colonies to adopt a bill of rights, which became the prototype for those of other colonies. The Virginia Declaration of Rights, adopted in convention on June 12, 1776, included the following interconnected propositions:

  I. That all Men are by Nature equally free and independent, and have certain inherent Rights ... ; namely, the Enjoyment of Life and Liberty, with the Means of ... pursuing and obtaining ... Safety.

  II. That all Power is vested in, and consequently derived from, the People ....

  XIII. That a well regulated Militia, composed of the Body of the People, trained to Arms, is the proper, natural, and safe Defence of a free State; that standing Armies, in Time of Peace, should be avoided, as dangerous to Liberty.

  The author of the Declaration was George Mason, who had employed similar phraseology during the previous two years in his writings on the Fairfax Independent Militia Company, which Mason and George Washington organized as a defense force against the Royal militia. “Threat’ned with the Destruction of our Civil-rights, & Liberty,” wrote Mason in 1774, the members of this company of volunteers, who elected their own officers, pledged that “we will, each of us, constantly keep by us” a firelock, six pounds of gunpowder, and twenty pounds of lead.24

  In early 1775, Mason drafted a Fairfax County Militia Plan “For Embodying the People.” It reiterated that “a well regulated Militia, composed of the Gentlemen, Freeholders, and other Freemen” was necessary to protect “our antient Laws & Liberty” from the standing army. “And we do each of us, for ourselves respectively, promise and engage to keep a good Fire-lock in proper Order, & to furnish Ourselves as soon as possible with, & always keep by us, one Pound of Gunpowder, four Pounds of Lead, one Dozen Gun Flints, & a pair of Bullet-Moulds, with a Cartouch Box, or powder-horn, and Bag for Balls.”25

  Mason provided a philosophical basis for the above in his Remarks on Annual Elections for the Fairfax Independent Company, asserting as fundamental that “all men are by nature born equally free and independent.” Government is the source of “the most arbitrary and despotic powers this day upon earth,” and liberty is secured only by “frequently appealing to the body of the people.”26 The Rpman experience proved that mercenaries destroy freedom, while the people must be introduced to “the use of arms and discipline” in order to “act in defence of their invaded liberty.”27

  This background clarifies the meaning of the Declaration of Rights adopted a year later. Every freeman would have the means of obtaining “safety,” “all power” would remain in “the people,” and “a free State” would be defended where the citizens kept and trained with “arms” and associated themselves into “militia.”28

  Probably because its principles were taken for granted, the Declaration of Rights occasioned virtually no public debate. The chief exception was the free exercise of religion clause, which sparked some newspaper controversy.29 A free press was included in the Declaration, but speech and assembly were not explicitly mentioned. Arms bearing was not characterized as a “right,” but that was perhaps considered unnecessary in a society where every man was required to arm himself and was even encouraged to learn to make his own gunpowder. For instance, “A friend to the American cause” detailed the formula so that “every man, after he is furnished with the ingredients [saltpeter and sulphur], may make, or cause to be made, a pound and a half of good gunpowder,” in one day.30

  Having adopted the Declaration of Rights, the 1776 convention proceeded to consider various proposals for a constitution. Thomas Jefferson, who was in Philadelphia at the time, prepared a draft constitution for Virginia that consisted of three parts. The first part contained the grievances and charges against George III that the Continental Congress would adopt less than a month later on July 4, in the Declaration of Independence. Next followed a proposed political system that would have altered the existing aristocratic structure. A third portion included a bill of rights that stated: “All persons shall have full & free liberty of religious opinion .... No freeman shall ever be debarred the use of arms .... There shall be no standing army but in time of ... actual war. Printing presses shall be free, except ... where by commission of private injury they shall give cause of private action.”31

  Jefferson’s proposals contain matters that thirteen years later would find expression in the First and Second Amendments—the freedoms of religion, arms, and the press. In a second draft, Jefferson added a prohibition on the holding of newcomers to the state in slavery and a tentative bracketed item to the arms guarantee: “No freeman shall be debarred the use of arms [within his own lands or tenements].”32 Jefferson used brackets to indicate that the contents thereof were optional or open to question.33 The reference to use of arms on one’s own lands and tenements may have been a rebuke to English game laws, which prohibited commoners from hunting on their own land. It also would have allowed legislation to establish a deer hunting season and thus to prevent taking of deer when off of one’s own property, which Jefferson proposed to the Virginia assembly not long after.34 A third draft of the constitution listed the above and other matters under the tide “Rights Private and Public.”35

  Jefferson, who was only 33 years old at the time, was himself one of the freemen at large who exercised the right of the “use of arms.” When Thomas was 10 years old, his father Colonel Peter Jefferson gave him a gun and sent him into the forest to promote self-reliance.36 By the time his father died when the lad was only 14, “he had already taught him to sit his horse, fire his gun, boldly stem the Rivanna when the swollen river was ‘Rolling red from brae to brae,’ and press his way with unflagging foot through the rocky summits of the contiguous hills in pursuit of deer and wild turkeys.”37

  On August 20, 1768, just days before the Redcoats landed to disarm the pesky Bostonians, the 25-year-old Jefferson recorded his entry in a target match in which he “won shooting 1/6,”—that is, a shilling sixpence.38 He made numerous references throughout his life to the acquisition, repair, and use of firearms.39 Probably many of the other delegates in the 1776 Virginia convention shared similar backgrounds and experiences.

  On June 29, 1776, the Virginia convention adopted a constitution. The preface incorporated Jefferson’s strictures against George III, while the text was based on proposals submitted by George Mason and others.40 The Declaration of Rights written by George Mason having already been adopted, Jefferson’s draft bill of rights was not used.

  But Jefferson’s proposal that “no freeman shall ever be debarred the use of arms” was fundamental to the worldview of the American patriots. Jefferson kept a Commonplace Book during the years 1774–1776, which has been called “the source-book and repertory of Jefferson’s ideas on government.”41

  Perhaps the most significant figures detailed by Jefferson in the Commonplace Book were the penal reformers Montesquieu, Beccaria, and Eden. Besides reading Montesquieu’s vindication of the right of armed self-defense and his denunciation of Venice’s death penalty for bearing firearms,42 Jefferson copied this passage: “In republics, it would be extremely dangerous to make the profession of arms a particular state, distinct from that of civil functions .... In republics a person takes up arms only with a view to defend his country and its laws; it is because he is a citizen he makes himself for a while a soldier.”43

  Writing “False idee di utilità (“false ideas of utility”) in the margin, Jefferson copied in Italian into his Commonplace Book the following passage from Beccaria:

  False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm those only who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code, will respect the les
s important and arbitrary ones, which can be violated with ease and impunity, and which, if strictly obeyed, would put an end to personal liberty—so dear to men, so dear to the enlightened legislator—and subject innocent persons to all the vexations that the guilty alone ought to suffer? Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. They ought to be designated as laws not preventive bur fearful of crimes, produced by the tumultuous impression of a few isolated facts, and not by thoughtful consideration of the inconveniences and advantages of a universal decree.44

  Jefferson read similar sentiments in William Eden, who combined observations of Montesquieu and Beccaria as follows: “It is a Law at Venice, that those, who carry fire-arms about their persons, shall suffer death. This law is founded in apparent utility; nevertheless it is contrary to the nature of things, to make the bare possession of the means of mischief equally penal with the most criminal use of those means.”45 By contrast, under English law “homicide is justifiable ... in the case of any woman, who kills a ravisher in defence of her chastity; or of any traveller, who, in the immediate defence of his property, shoots a highwayman.”46 Further, homicide is excusable “by self-defence.”47

  The sources Jefferson consulted in preparation of his Commonplace Book reveal the premises for his proposal that “no freeman shall ever be debarred the use of arms.” The armed citizen would protect himself and the community from both the private criminal and tyrannical government. Both of these concepts would be formalized by the next state to adopt a declaration of rights, Pennsylvania.

  Jefferson’s proposal included no militia clause, but in 1777 he introduced a bill for regulating and disciplining the militia. Enacted that same year, it provided that the militia would consist of all free males, hired servants and apprentices, between the ages of 16 and 50 years.48 Every private was required to equip himself “with a rifle and tomahawk, or common firelock and bayonet,” and to “constantly keep one pound of powder and four pounds of ball.” If any “be so poor that he cannot purchase such arms, the said court shall cause them to be procured at the expence of the public.”49 Jefferson’s militia bill deleted the restriction in a previous act that “free mulattoes, negroes, and Indians” shall “appear without arms” at muster.50

  NEW JERSEY

  On July 2, 1776, the New Jersey Provincial Congress, assembled as a convention, adopted a constitution. It contained no bill of rights, although it did provide that “no Protestant inhabitant of this Colony shall be denied the employment of any civil right, merely on account of his religious principles.”51 The common law of England, and the statute law that had been in effect in the colony, to the extent not “repugnant to the rights and privileges contained in this Charter,” was declared to remain in force, together with trial by jury.52

  The New Jersey Constitution was framed by a committee of ten chaired by Jacob Green, a Presbyterian minister.53 At most five days passed between its drafting and final adoption by the state Congress.54 The chief draftsman appears to have been Jonathan D. Sergeant, a young attorney who was a friend of John Adams and an advocate of independence.55

  Why was no bill of rights included in New Jersey’s first Constitution? First, it was believed that the common law protected fundamental rights.56 The right to petition and the right of Protestants to have arms were both recognized as common law and in the English Declaration of Rights of 1689.57 Second, the British fleet was anchored off the coast of the colony, and there was no time for theoretical discussions.58 Judge William Griffith wrote two decades later that “public sentiment in New Jersey in 1776 dwelt with slight regard upon the forms of constitution. Engaged in a desperate conflict for freedom itself, it was thought of more consequence to exert courage in repelling foreign tyranny, than to sit canvassing the comparative merits of theories, which were to secure internal liberty, not yet won from our oppressors.”59

  The conventions of the states that adopted the most elaborate declarations of rights—Virginia and Pennsylvania—were not under military threat as they deliberated. When it adopted its Constitution, the New Jersey Congress was mostly concerned with organizing the militia for immediate defense and sending Tories to jail.60 In the fall of 1776, Governor William Livingston recommended to the Council and Assembly of New Jersey “some further regulations respecting the better ordering the Militia,”61 and the assembly agreed with “the necessity of a well regulated militia for the defence of a free State.”62 Indeed, the year before, the people of New Jersey had responded to Lexington and Concord by arming and associating, and the first Provincial Congress created a militia system in May 1775.63

  Just across the river, in late summer 1776, New York City fell to the British. A proclamation was issued to Suffolk County directing that “every man in arms lay them down forthwith, and surrender themselves, on pain of being treated as Rebels.”64 Compliance was thought to be incomplete, for three months later, the Newark-based New York Gazette published the following directive by New York’s Royal Governor William Tryon addressed “to the inhabitants of Suffolk county”: “That all offensive arms, indiscriminately, be forthwith collected, in each respective manor, township, and precinct, as soon as possible, to deliver them up at headquarters, to the Commander in Chief of the King’s troops.”65

  The war would soon spill over into New Jersey, where patriot leaders counted on the armed populace to respond. General George Washington addressed the county militia of New Jersey in 1777 as follows: “I therefore call upon you, by all you hold dear, to rise up as one Man, and rid your Country of its cruel invaders.... [T]his can be done by a general appearance of all its Freemen armed and ready to give them opposition .... I am convinced every Man who can bear a Musket, will take it up.”66

  Typical of the epoch was New Jersey’s 1781 act for the regulating, training, and arraying of the militia, and for providing more effectually for the defense and security of the state.67 The militia included “all effective Men between the Ages of sixteen and fifty Years.”68 “Every person enrolled as aforesaid, shall constantly keep himself furnished with a good Musket ... [or] a good Rifle­Gun,”69 while each horseman “shall at all Time keep himself provided with a good Horse, a Saddle properly furnished with a Pair of Pistols and Holsters.”70 To say the least, in New Jersey the right and duty to keep and bear arms was recognized as a fact and as a dire necessity.

  PENNSYLVANIA

  Pennsylvania was the first state to adopt a formal guarantee of the right of the people to bear arms.71 That state’s constitutional convention, presided over by Benjamin Franklin, met from July 15 through September 28, 1776, a longer period than most state conventions.72 The Virginia Declaration of Rights had been published in Philadelphia the month before the convention began.73 A majority in the convention were “Associators,” members of armed organizations.74

  Initially, eleven delegates were appointed to the Declaration of Rights Committee.75 The session on July 25 approved the Declaration of Independence and appointed James Cannon and Colonel Timothy Matlack to the committee for drafting a frame of government.76 Interestingly, after the Continental Congress adopted the Declaration of Independence, it gave the job of hand lettering the document to Matlack. Cannon and Matlack had been elected to the Pennsylvania convention by ultra radicals with the backing of the militia, which originated in extralegal associations of armed men.77

  Cannon, a militia leader and the state’s leading patriot writer next to Thomas Paine, was chief author of the Declaration of Rights, adopted some three weeks later.78 Cannon was apparently assisted by Judge George Bryan and Colonel Matlack. A contemporary wrote that the Pennsylvania Constitution “was understood to have been principally the work of Mr. George Bryan, in conjunction with Mr. Cannon, a schoolmaster.”79 John Adams asserted that the Pennsylvania “Bill of Rights is taken almost verbatim from that of Virginia .... It was by Mr. Mason, as that of Pe
nnsylvania was by Timothy Matlack, James Cannon and Thomas Young and Thomas Paine.”80

  George Bryan, later a justice of the Pennsylvania Supreme Court, was the most influential member of the convention.81 Professor James Cannon of the College of Philadelphia contributed most of the phraseology of the document.82 Cannon, along with Dr. Thomas Young, and Thomas Paine, were leaders of the radical Whig Society.83 Thomas Paine was not actually in Philadelphia during the convention, but he wrote in the Pennsylvania Magazine the same month the convention began its deliberations:

  The supposed quietude of a good man allures the ruffian; while on the other hand, arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The balance of power is the scale of peace. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside .... Horrid mischief would ensue were one half the world deprived of the use of them; ... the weak will become a prey to the strong.84

  Paine had established his reputation in early 1776 with the publication in Philadelphia of Common Sense, in which he depicted “taking up arms”85 as both necessary and realistic: “Our small arms [are] equal to any in the world ... Saltpeter and gunpowder we are every day producing.”86 His Epistle to Quakers published in the appendix of the third edition of Common Sense addressed a pro-Tory double standard: “As if all sin was reduced to, and comprehended in, the act of bearing arms, and that by the people only.” Not condemning the invading soldiers was illogical, “for they likewise bear ARMS.”87

  Judge Bryan sought “to identify himself with the people, in opposition to those, who were termed the well born.”88 Cannon had a “scholastic predilection for the antique in liberty.”89 Matlack, an Associator, when once asked by a Quaker why he wore a sword, replied: “That is to defend my property and my liberty.”90