“Letter XVI,” dated January 20, 1788, noted that it was easier to enumerate the federal powers “than to enumerate particularly the individual rights to be reserved,” but “still there are infinite advantages in particularly enumerating many of the most essential rights reserved in all cases; and as to the less important ones, we may declare in general terms, that all not expressly surrendered are reserved.”84 Since the proposed Constitution enumerated some rights and not others, the people “ought to go through enumerating, and establish particularly all the rights of individuals, which can by any possibility come into question in making and executing federal laws.”85 Some of the “fundamental rights” mentioned by the Federal Farmer were the rights of free press, petition, and religion; the rights to speedy trial, trial by jury, confrontation of accusers and against self-incrimination; the right against unreasonable search and seizure; and the right to refuse quartering of soldiers.86
In “Letter XVIII,” dated January 25, 1788, the Federal Farmer explained the nature of the militia and of the right to keep and bear arms. The militia included the people at large, not some elite force:
A militia, when properly formed, are in fact the people themselves, and render regular troops in a great measure unnecessary.... [T]he constitution ought to secure a genuine [militia] and guard against a select militia, by providing that the militia shall always be kept well organised, armed, and disciplined, and include... all men capable of bearing arms; and that all regulations tending to render this general militia useless and defenceless, by establishing select corps of militia, or distinct bodies of military men, not having permanent interests and attachments in the community to be avoided.87
The Federal Farmer feared that Congress, through its power over the militia, would establish a “select militia” apart from the people that would be used as an instrument of domination by the federal government. He refuted the argument that it is impractical to view the militia as the whole body of the people, and that reliance must be placed on a select corps, in these terms:
But, say gentlemen, the general militia are for the most part employed at home in their private concerns, cannot well be called out, or be depended upon; that we must have a select militia; that is, as I understand it, particular corps or bodies of young men, and of men who have but little to do at home, particularly armed and disciplined in some measure, at the public expense, and always ready to take the field. These corps, not much unlike regular troops, will ever produce an inattention to the general militia; and the consequence has ever been, and always must be, that the substantial men, having families and property, will generally be without arms, without knowing the use of them, and defenceless; whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.88
While federalists and antifederalists differed on the need for a paper declaration, and to some extent on the army-militia question, no one disputed the Farmer’s above remark that “it is essential that the whole body of the people always possess arms” and should know “how to use them.” Individual firearm ownership, whether as a right or a simple fact, simply was not questioned.
Meanwhile, as the ratification struggle ensued, prominent authors recalled philosophical influences and pre-Revolutionary experiences that defined the right to have arms as the mark of a free person. Beginning some six months before the Philadelphia convention started and ending the next year, John Adams published his treatise Defence of the Constitutions of Government of the United States of America, which became well known in the states and in Europe. While Benjamin Rush doubted that it had been read by convention delegates,89 the three-volume work was referred to in the postconvention newspaper debates.90
In the first volume, Adams had occasion to contrast Europe’s monarchies with the cantons of the Swiss Confederation, which he divided into “democratical” and “aristocratical.” Regardless of which category Adams placed a particular canton, he noted two institutions of direct democracy: the rights to bear arms and to vote on laws. In the Canton of Glaris, for instance, “the sovereign is the whole country, and the sovereignty resides in the general assembly, where each male of fifteen, with his sword at his side, has his seat and vote.” Further, “this assembly, which is annually held in an open plain, ratifies the laws, lays taxes, enters into alliance, declares war, and make peace.”91 While more aristocratical, Berne had a democratic military system:
There is no standing army, but every male of sixteen is enrolled in the militia, and obligated to provide himself an uniform, a musket, powder and ball; and no peasant is allowed to marry, without producing his arms and uniform. The arms are inspected every year, and the men exercised.92
Adams approvingly quoted Marchamont Nedham’s dictum that “the people be continually trained up in the exercise of arms, and the militia lodged only in the people’s hands,” or as Aristotle put it, “to place the use of and exercise of arms in the people, because the commonwealth is theirs who hold the arms....”93 Adams noted that the continental European states achieved absolutism by following the Caesarian precedent of erecting “praetorian bands, instead of a public militia.”94 The aristocratic Adams recognized the individual right to use arms for personal protection, but looked askance at the kind of armed protest recently exemplified in Shays’ Rebellion:
To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defence, or by partial orders of towns, counties, or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man—it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws.95
For the more radical Thomas Jefferson, individual discretion was acceptable in the use of arms not simply for private but for public defense as well. Writing from Paris on November 13, 1787, to William Stephens Smith, Jefferson noted that he had just received a copy of the Constitution, and “there are very good articles in it & very bad.” He opined that the recent troubles (Shays’ Rebellion) hardly spelled anarchy and were localized in Massachusetts. Jefferson continued:
God forbid we should ever be twenty years without such a rebellion.... And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms.... The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants.... Our Convention has been too much impressed by the insurrection of Massachusetts....96
Jefferson had served as U.S. minister to France since 1785, and a short digression on that remarkable American is warranted here. Jefferson wrote from Paris on August 19, 1785, to his 15-year-old nephew Peter Carr, advising him on advancement in mind, body, and soul. After recommending the Greek and Roman classics in the original languages, Jefferson noted that “a strong body makes a strong mind,” and advised two hours of exercise each day: “As to the species of exercise of exercise, I advise the gun. While this gives a moderate exercise to the body, it gives boldness, enterprise, and independence to the mind.... Let your gun therefore be the constant companion of your walks.” Do not take a book, he continued, but relax the mind, look at the surrounding objects, and walk far. Mean while, Jefferson noted a number of books in various languages he was sending to his nephew, in “care of Mr. Madison.”97
While in Europe, Jefferson collected not only books but also firearms. His journal reflects a shopping spree in London in March 1786 in which he “p[ai]d... for p[ai]r. pocket pistols, £ 1-18 [one pound 18 shillings],” “powder flask
4/.,” and “pr. Pistols silvermounted £ 1-18.”98 One set of the pairs, which are screw-barrel, boxlock flintlock pocket pistols, is preserved today at Monticello.99 And in July 1787, while his brethren in Philadelphia were drafting the Constitution, Jefferson was back in Paris where he bought “a doule barrel gun [for] 60f. [francs] .”100
In February 1787, Jefferson published from abroad his Notes on the State of Virginia. He listed the number of militiamen by county in Virginia, ending with the figure for the “Whole Militia of the State 49,971.”101 Jefferson noted:
Every able-bodied freeman, between the ages of 16 and 50, is enrolled in the militia.... The law requires every militia-man to provide himself with arms usual in the regular service. But this injunction was always indifferently complied with, and the arms they had have been so frequently called for to arm the regulars, that in the lower parts of the country they are entirely disarmed. In the middle country a fourth or fifth part of them may have such firelocks as they had provided to destroy the noxious animals which infest their farms; and on the western side of the Blue ridge they are generally armed with rifles.102
Jefferson would remain minister to France through the constitutional ratification period, returning in 1789 to accept appointment by President George Washington as secretary of state. Washington was also a lifelong collector of fine firearms who carried pistols for self-defense and hunted with scatterguns (shotguns).103
Back to 1787, as federalist and antifederalist pens clashed, the state ratifying conventions began to meet to consider the Constitution. Six of the smaller states would quickly ratify without proposing a declaration of rights. But in the larger and more influential states, the issue of whether to include a bill of rights would lead to deep chasms and, eventually, to a resounding demand that personal rights be declared after ratification of the Constitution.
CHAPTER 9
The “Dissent of the Minority”
I APPROVE of most of the powers proposed to be given,” wrote Revolutionary War officer George Turner from Philadelphia to Winthrop Sargent of Boston on November 6, 1787. “But, as a friend to the natural rights of man, I must hold up my hand against others. There are certain great and unalienable rights . . . that should have been secured by a declaration or bill of rights.”1
The Constitution proposed by the Philadelphia convention would be considered for ratification by each of the states. Several of the smaller states ratified the document without demanding a bill of rights, but among the larger states a declaration of rights would be demanded initially by vocal dissenters and later by majorities of the state conventions. The right to keep and bear arms would be prominent in those demands.
DELAWARE
The Constitution raised little controversy in Delaware, both Whigs and Tories there favoring the new system.2 It ratified the Constitution on December 7, 1787, the first state to do so.
PENNSYLVANIA
The Pennsylvania convention ratified the Constitution five days later, but only after a substantial confrontation. The convention was divided between federalists, who argued that a free people needed no bill of rights, and antifederalists, who feared that without a bill of rights, the people could be disarmed and have other rights violated. The antifederalists also sought changes to the federal-state structure, including an amendment to recognize the state power to maintain militias.
Few of the debates were recorded, except for the lengthy speeches of James Wilson, a leading delegate to the Philadelphia convention which drafted the Constitution. Speeches of the antifederalists were primarily not transcribed or published.
Yet Wilson clearly articulated two points critical to this study: first, that a bill of individual rights was unnecessary in a free state, and second, that a militia composed of the armed populace would minimize the need for a standing army.3
In a speech on October 28, Wilson responded to the request for an explanation of why the Philadelphia convention drafted the proposed Constitution without a bill of rights. He could not speak for every delegate to the convention, but offered:
Such an idea never entered the mind of many of them. I do not recollect to have heard the subject mentioned till within about three days of the time of our rising. . . . A proposition to adopt a measure that would have supposed that we were throwing into the general government every power not expressly reserved by the people, would have been spurned at, in that house, with the greatest indignation . . . . If we attempt an enumeration, every thing that is not enumerated is presumed to be given.4
In hindsight, it is difficult to contest Wilson’s premise that “an imperfect enumeration” would lead to interpretations that restrict rights. Still, imperfectly worded guarantees would be better than no guarantees at all. At least the antifederalists so thought.
While the speeches of the antifederalists were poorly recorded and were not published, Wilson’s own notes included the following outline of remarks of John Smilie on November 30. Noting that he would be offering a bill of rights, Smilie argued:
Bill of rights necessary as the instrument of original compact and to mention the rights reserved. . . . There must be a people before there is a king; and the people, in the first instance, have inherent and inalienable rights. We ought to know what rights we surrender, and what we retain.5
Against this sketch of the antifederalist argument for a declaration of rights, Wilson’s entire rebuttal of December 4 was recorded. Wilson stated that he had spoken in the meantime with a delegate to the Philadelphia convention who had taken full notes, and that person verified that no motion had been made in the convention to include a bill of rights. He rejected the premise that “not only all the powers which are given, but also that all those which are reserved, should be enumerated,” observing that the great political treaties do not contain “a complete enumeration of rights appertaining to the people as men and as citizens.” Here, “there can be no necessity for a bill of rights, for . . . the people never part with their power. Enumerate all the rights of men!”6 The task was impossible.
In a speech on December 6, Smilie objected to the power of Congress to keep a standing army, averring: “The Last resource of a free people is taken away; for Congress are to have the command of the militia.” The state governors would become the “drill sergeants” of Congress, and further:
Congress may give us a select militia which will, in fact, be a standing army—or Congress, afraid of a general militia, may say there shall be no militia at all.
When a select militia is formed; the people in general may be disarmed.7
While the above is only a sketch of the speech recorded by Wilson, it is clear that Smilie feared that Congress may abolish the “general militia” composed of the people at large. A select militia qua standing army would create the potential to disarm “the people in general.”
Wilson responded on December 11, noting that Smilie represented a minority in the convention and taking affront to their claims: “If the minority are contending for the rights of mankind, the majority must be contending for the doctrines of tyranny and slavery. . . . Who are the majority in this assembly?—Are they not the people?”8
Wilson further argued that Congress’ power to arm the militia would promote standardization, not disarmament. Congress could prescribe common sizes of barrels for firearms required to be possessed by the populace so that ammunition would be interchangeable:
I believe any gentleman, who possesses military experience, will inform you that men without a uniformity of arms, accoutrements, and discipline, are no more than a mob in a camp; that, in the field, instead of assisting, they interfere with one another. If a soldier drops his musket, and his companion, unfurnished with one, takes it up, it is of no service, because his cartridges do not fit it. By means of this system, a uniformity of arms and discipline will prevail throughout the United States.9
Wilson suggested that the proposed militia system would largely supersede any need for a standing army, and indeed: “The militia formed und
er this system, and trained by the several states, will be such a bulwark of internal strength, as to prevent the attacks of foreign enemies. I have been told that, about the year 1744, an attack was intended by France upon Massachusetts Bay, but was given up on reading the militia law of the province.” The European powers would be even more deterred by the body of militia under uniform regulations.10
While the lion’s share of preserved speeches are those of Wilson, also intact are some of Thomas McKean. As usual, the speechmaker is a federalist refuting an antifederalist whose remarks were not recorded or published. McKean quoted an objection to Congress’ power to call out the militia, for it “may call them from one end of the continent to the other, and wantonly harass them; besides, they may coerce men to act in the militia whose consciences are against bearing arms in any case.” McKean responded that, while Congress would have power to organize, arm, and discipline the militia, “every thing else is left to the state governments; they are to officer and train them.” And while Congress could call out the militia to execute the laws, suppress insurrections, and repel invasions, “can it be supposed they would call them, in such case, from Georgia to New Hampshire? Common sense must oppose the idea.”11
McKean also responded to the argument that “there is no bill or declaration of rights in this Constitution.” Such was not “deemed essential to liberty” except in Great Britain and six of the American states—not a very powerful argument—but in any event, McKean argued, “it is unnecessary; for the powers of Congress, being derived from the people in the mode pointed out by this Constitution, and being therein enumerated and positively granted, can be no other than what this positive grant conveys.”12
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