"The constitutionalism of the founding generation was concerned with rights and obligations. The close connection between rights and obligations was central to the way Sir William Blackstone conceptualized the nature of liberty: "[T]he rights of persons that are commanded to be observed by the municipal law are of two sorts; first, such as are due from every citizen, which are usually called civil duties; and, secondly, such as belong to him, which is the more popular acceptation of rights.... " The learned English jurist then went on to note that allegiance and protection were "reciprocally, the rights as well as duties of each other." Citizens had both a right and a duty to arm themselves so that they might participate in a militia. Both of these conceptions of rights were bound together in the idea of well regulated liberty. The goal of constitutional government was to constrain arbitrary power, not to hobble government authority. Civil liberty in this scheme, was "no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the publick."
As minister John Zubly noted in a sermon preached before the Provincial Congress of Georgia on the eve of the American Revolution, the "well regulated liberty of individuals is the natural offspring of laws, which prudentially regulated the rights of whole communities." Zubly went on to amplify this notion by observing that "all liberty which is not regulated by law is a delusive phantom." Outside of a well regulated society governed by the rule of law, liberty was nothing more than licentiousness and anarchy. This particular conception of liberty was central to the way the founding generation understood the idea of the right to bear arms...
The Pennsylvania Declaration of Rights... introduced the obligation to bear arms, a term that clearly signified the use of arms for a distinctly public purpose... the state could compel one to serve in the militia, outfit oneself with a weapon, and expend ammunition, while bearing absolutely no legal obligation to compensate citizens for their expenses. In essence, bearing arms was a form of taxation...
After establishing the obligation to bear arms, Section XIII then stated for the first time in America, a constitutional right of the people to bear arms...
The Pennsylvania Declaration of Rights uttered this principle in the same breath as it attacked standing armies and affirmed civilian control of the military, rather than, for example, articulating this right in the same breath as freedom of religion or the press. The text and structure of the provision both support a civic, military reading of the right to bear arms, not an individual right for personal protection.
It is certainly true that the right to bear arms was framed as a "right of the people". Although this term has come to be associated with the notion of individual rights in modern legal thought, in the eighteenth century, the phrase "right of the people" could be used to describe rights held by the people as a collective entity, or as individuals...
The Pennsylvania Declaration of Rights also framed freedom of speech and the press as a right of the people. Here the term was more individualistic, but still no less public in orientation... Philadelphia actually prohibited the theater because it posed a threat to public morality.
The Pennsylvania Constitution also declared that the right to bear arms existed as a means for the people to act in "defence of themselves and the state." Modern gun rights scholarship has consistently misread this phrase as stating an individual, private right of self- defense. The Pennsylvania Constitution did not assert a right of each person to bear arms in defense of himself and the state, but rather framed the right in a collective, as opposed to an individualistic, formulation. It is important to recognize that the militia served to protect communities, as well as the state, against internal and external threats. The militia existed to deal with internal dangers such as riot or insurrection, as well as the threat of invasion...
Americans drafted their constitutional protections for the right to bear arms in response to their fear that government might disarm the militia, not restrict the common law right of self-defense. Indeed, if one scans the vast corpus of writings from the ratification debates, virtually every reference to bearing arms occurs within the context of the debate over the militia. Even if one includes the Revolutionary Era and the federalist era, references to anything that might be construed as a constitutional right of individual self-defense are exceedingly rare, and almost always turn out to be statements from dissenting constitutional texts that expressed the point of view of the losers in the great constitutional struggles of the eighteenth century. Thus, one notes that modern individual rights theorists are particularly fond of references to Jefferson's rejected proposal for the Virginia Declaration of Rights, Samuel Adams's rejected proposal made to the Massachusetts Ratification Convention, and the dissent of the Anti- Federalist minority of the Pennsylvania Ratification Convention.
Another anachronism in contemporary Second Amendment scholarship is the tendency to read modern notions of self-defense into the Founding Era. The linkage between firearms and self- defense in the Founding Era and the early Republic was much more tenuous. This makes sense given that firearms only accounted for a small percentage of homicides in the period before the Civil War. Edged weapons and blunt instruments were better suited to individual self-defense in most situations. There can be little doubt that the founders believed that keeping a musket in one's home, something closely tied to the ideal of a well regulated militia, clearly enjoyed constitutional protection. Weapons with little military value, carried in a civilian context, were treated as another matter entirely. For example, James Madison's proposal for those who violated Virginia's game laws captured the important distinction between civilian and military gun use...
Additional evidence that the law treated weapons intended for militia use differently than those used outside of a military context may be found in two New Jersey laws that gave the state broad power to disarm disorderly persons and armed assemblies...
Some sense of the scope of the concept of self-defense in the Founding Era can be obtained by examining the popular guide books that were consulted by justices of the peace, sheriffs, and constables. Readers of the Conductor Generalis,one of the most popular of these lay guides to the law, would have encountered a detailed explication of the common law crime of affray. Under common law, justices of the peace, sheriffs, and constables were empowered to disarm individuals who rode about armed in terror of the peace...
The common law not only constrained when and how one might travel with arms, but it defined the limits of legitimate self-defense quite narrowly. Indeed, the military use of arms required citizens to stand and fight, while the civilian requirement was retreat. In contrast to modern notions of self-defense, the law of justifiable homicide in the eighteenth century required a retreat to the wall before responding with deadly force: flight, not fight, defined the meaning of self-defense in the founding generation.
To properly understand how American law dealt with firearms, one must not only reconstruct the neglected context of the common law, but also recognize the robust character of the state's police power in early America. Pennsylvania's Declaration of Rights affirmed that "[t]he people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same. Defining the scope of the individual right to self-defense and the right to own firearms for private use was something that fell within the police powers of the state. It was up to the legislature to create a body of laws dealing with aspects of criminal law, including the law of homicide, which would establish when citizens might use deadly force to protect life, liberty, or property. While one could not eliminate the right of self-defense, the legislature could define the limits of such a right and could enact laws about firearms consistent with the goals of protecting public safety. For instance, states enacted laws about how guns had to be stored, when they could be used for recreational purposes, and when and where citizens could hunt. The right to bear arms and the right to use firearms for personal reasons were clearly separate and distinct under the Pennsylvania Constitution, which dealt with the right to hunt and the right to bear arms in separate provisions.
Although much ink has been expended to try to fit the Second Amendment into our modern categories of debate, relatively little attention has been devoted to analyzing the kinds of laws and regulations regarding firearms that were enacted in the Founding Era and subsequent decades. Nor has much effort been devoted to carefully analyzing the decisions of courts trying to make sense of this complex body of laws. Gun rights advocates have claimed that gun control is a modern invention. In reality, a variety of gun regulations were on the books when individual states adopted their arms-bearing provisions and when the Second Amendment was adopted. In the years after the adoption of the Second Amendment, the individual states adopted even more stringent types of regulations. Most gun regulation in the Founding Era and early Republic occurred at the state level. Of course, one might argue that gun regulation at the state level has little bearing on how we should understand the meaning of the Second Amendment. Until the emergence of modern incorporation theory, however, the dominant view of the Bill of Rights was laid down in Barron v. Baltimore, which held that the Bill of Rights only restrained the federal government, not the individual states...
The philosophical connection between state arms-bearing provisions and the Second Amendment would have seemed obvious to Americans in the Founding Era and the early Republic. Both conceptions of arms bearing were tied to the larger concept of a collective self-defense in a well regulated society governed by law. For an influential lawyer and constitutional commentator such as William Rawle, the connection between state arms-bearing provisions and the Constitution was indisputable... In contrast to modern gun rights theory, Rawle believed that there could be no right to bear arms without regulation.
Gun rights legal scholars have made a number of remarkable, almost phantasmagorical claims about the meaning of the term "well regulated." Perhaps the most far-fetched of these is the suggestion that well regulated did not mean government-controlled, but only properly disciplined and drilled... After reading bizarre claims like this, one can readily understand why historian Jack Rakove has likened the world of Second Amendment scholarship to a scholarly Twilight Zone...
If one simply looks at the gun laws adopted in the Founding Era and early Republic, the evidence for robust regulation is extensive. If American history fit the Bizarro model, then gun regulation after the adoption of the Second Amendment would have virtually disappeared." In reality, the decades after ratification of the Second Amendment saw increased, not decreased, levels of regulation.
A variety of laws regulating firearms were already in place during the Founding Era. Militia regulations were the most common form of laws pertaining to firearms. Such laws could be quite intrusive, allowing government not only to keep track of who had firearms, but requiring them to report for a muster or face stiff penalties."' Regulations governing the storage of gun powder were also common." States prohibited the use of firearms on certain occasions and in certain locations. A variety of race-based exclusions disarmed slaves, and in some cases, free blacks. Loyalty oaths also disarmed portions of the population during the Founding Era.
This pattern of regulation shifted dramatically in the decades after the adoption of the Second Amendment. In the years after the War of 1812, a number of states enacted laws against the practice of carrying concealed weapons. The first laws were passed in southern states, but midwestern states such as Indiana also passed similar laws. The first round of laws made it a crime to carry such weapons. Later, several states enacted even more stringent laws, banning the sale of concealed weapons...
During the American Revolution, several states passed laws providing for the confiscation of weapons owned by persons refusing to swear an oath of allegiance to the state or the United States. To deal with the potential threat coming from armed citizens who remained loyal to Great Britain, states took the obvious precaution of disarming these persons. Thus, the security of the community outweighed any right a person might have to possess a firearm.
In Pennsylvania, if a person "refuse[d] or neglect[ed] to take the oath or affirmation" of allegiance to the state, he was required to deliver up his arms to agents of the state, and he was not permitted to carry any arms about his person or keep any arms or ammunition in his "house or elsewhere." Such a broad provision effectively eliminated the opportunity for someone to violently protest the actions of the Pennsylvania government or defend himself with a firearm. It should be underscored that those refusing to take the oath or affirmation were unable to borrow or even use another person's firearms.
In 1776, Massachusetts passed, at the behest of the Continental Congress, an act that disarmed "such Persons as are notoriously disaffected to the Cause of America, or who refuse to associate to defend by Arms the United American Colonies."'...
Disarmament was not limited to the arguably extraordinary period of the American Revolution. In 1787, the Massachusetts legislature passed a law setting out the terms for pardons by the governor for persons who had been involved in Shays's rebellion against the state in the previous year. Those who had taken up arms against the state were, with some exceptions, able to seek a pardon from the governor. To obtain the pardon, however, a person needed to take an oath of allegiance to the state and deliver his arms to the state for a period of three years. In addition, during the same time period, the person would be unable to serve as a juror, hold government office, or vote "for any officer, civil or military."...
The law demonstrates that in a well regulated society, the state could disarm those it deemed likely to disrupt society. These types of statutes raise serious questions about the claim of some modern Second Amendment scholars that the right to bear arms was somehow intended to facilitate an individual right of revolution. Quite the opposite was the case. To enjoy the right to bear arms, one had to renounce such revolutionary aspirations...
Some of the most common regulations of firearms in the eighteenth century are the laws regulating a state's militia...
The eighteenth-century militia laws are another example of the lengths to which states could go in order to ensure that their communities were well regulated and safe. Indeed, the excerpts from the above militia laws in force at the end of the eighteenth century shed light on the Second Amendment's language about a "well regulated militia."' Militias were certainly well regulated. The state could require a majority of the adult population to muster and offer up their privately held firearms for inspection. In Massachusetts, an "exact" account of each militiaman's firearm and equipment was made, which was then sent on to other officers of the state. The militia laws also underscore how different the eighteenth century was from our own century with regard to civic obligations. Average citizens were required to take part in the defense of their community, using their own property and sacrificing their own time. Finally, militia laws can be seen as another attempt by the state to guarantee the safety of the community. In an era that relied on everyday citizens to provide for community and national defense, the idea of a right to keep and bear arms was a given. To provide the best defense, however, the state also had to ensure that the men were trained and that their equipment was in working order. The eighteenth-century militia laws accomplished these twin goals with regular musters, arms inspections, and penalties for noncompliance.
By the close of the eighteenth century, there was already a tradition of statutes regulating the storage and transport of gunpowder...
The state acting under the authority of its robust police powers retained the right to pass safe storage laws prohibiting citizens from keeping loaded firearms in their homes. A 1783 Massachusetts statute declared that "the depositing of loaded Arms in the Houses of the Town of Boston, is dangerous" and provided for fine and forfeiture for anyone keeping a loaded firearm in "any Dwelling-House, Stable, Barn, Out-house, Ware-house, Store, Shop, or other Building.
Colonial and state legislators clearly thought that it was well within their powers to regulate the storage and transport of gunpowder. In addition, the amount of gunpowder an individual or business could keep in a building was also limited. The laws were clearly crafted to meet the needs of public safety, but they also provided a check on the creation of a private arsenal. Indeed, gunpowder in excess of the legal limit typically had to be stored in the public magazine, under the authority of the state. The gunpowder storage laws of the eighteenth century thus constituted a significant limit on the right to bear arms.
In the nineteenth century, laws directly regulating firearms became far more prevalent. In order to combat the dangers stemming from guns and maintain the goal of fostering a well regulated society, states became increasingly ambitious in the range and scope of the laws they enacted regarding firearms. The laws fall into three categories: laws prohibiting the carrying of concealed weapons, laws prohibiting the sale of such weapons, and laws prohibiting the firing of a gun under certain circumstances...
Neither the constitutional right to bear arms nor the common law right of self-defense trumped the right of the state to regulate firearms, including prohibitions on certain types of weapons. In this sense, firearms were subject to a level of prior restraint that would have been unthinkable for the free exercise of religion or freedom of the press...
In contrast to modern law where many states have pre-empted the right of localities to restrict firearms, local regulation was quite common in pre-Civil War America...
There can be little doubt about the emergence of a more individualistic conception of arms bearing over the course of the nineteenth century...
Contrary to the claim of some modern gun rights advocates, robust regulation of firearms is not only compatible with the Second Amendment, it is an essential part of the founders' vision of how guns fit within the framework of well regulated liberty...
Although gun rights advocates have become somewhat obsessed with proving that the right to bear arms includes private arms for private purposes, there is little in the history, the text, or the structure of the Constitution to support such a view. Only by constructing an alternate history fantasy in which the Second Amendment was authored by Daniel Shays, Samuel Adams, or the dissenting Anti-Federalist minority of Pennsylvania, can such a view be sustained. The absence of any compelling historical evidence to support the individual rights view of the Second Amendment does not mean that government is free to enact any laws it wishes regarding firearms. The concept of well regulated liberty and the common law protections for firearms owners would certainly preclude the nightmare scenario of gun confiscation so often conjured up by gun rights advocates...
Gun rights advocates have often invoked the specter of domestic disarmament as the inevitable outcome of failing to recognize that the Second Amendment protects an individual right."' Although intellectually it is not hard to deconstruct such slippery slope arguments, their emotional resonance in American culture is indisputable. The problem with such slippery slope arguments was first recognized by Federalists, who easily disarmed their Anti- Federalist opponents' hysterical rhetoric by noting that, with such high levels of domestic armament, such a fear was illusory. In a nation with so many guns and such widespread popular support for gun ownership, there is little need to fear domestic disarmament. Quite apart from the problems of enforcement, which would be monumental, it is hard to imagine courts accepting any policy or regulatory scheme that effectively prohibited all firearms under all circumstances even with the most lax rational basis review. The time has arrived to cast aside both the libertarian and gun prohibitionist rhetoric that drives so much of this debate, and focus our attention on creating a regulatory scheme that promotes public safety and recognizes the many legitimate uses of guns in our society."
--- A Well Regulated Right: The Early American Origins of Gun Control / Saul Cornell and Nathan DeDino
Weird. Gun nuts keep claiming that "well-regulated" can only mean "well-functioning". In any event, clearly the secret to a well-functioning militia is individuals buying their guns and never training together or having any chain of command.
Someone claimed that historically the only gun control was on black people, Indians and those convicted of crime with a gun (and the last got them back after time served). Oops.
I guess people in the 18th century and early 19th century were too stupid to understand what "shall not be infringed" means.
So much for resisting a "tyrannical government" - if you did not swear an oath to the government, you didn't get to keep your guns.
Americans like to claim that Their Constitution must be interpreted according to how the Founders would've understood it. So they'd need to ignore how gun rights got expanded.
