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The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of “the Right of the People to Keep and Bear Arms”

  • David Thomas Konig
Extract

The present essay seeks to work at the intersection of law and history, a meeting point where interpretation of the Second Amendment has been more characterized by collision than confluence. Analysis brought to bear on the historical meaning of “the right of the people to keep and bear arms” has coalesced around two competing normative interpretations: either that the amendment guarantees a personal, individual right to bear arms, or that it applies only collectively to the effectiveness of the militia. It is a premise of this essay that both these models are historically unsatisfactory, the products of present-day normative agendas that have polarized the debate into two competing and largely ahistorical models—a type of historians' fallacy that David Hackett Fischer has labeled the “fallacy of false dichotomous questions.” Fischer's description aptly describes the current controversy over the historical meaning of the Second Amendment: in addition to being “grossly anachronistic,” its two opposing positions “are mutually exclusive, and collectively exhaustive, so that the there is no overlap, no opening in the middle, and nothing is omitted at either end.” It is not without challenge on just these grounds, however, as a recent call for a “new more sophisticated paradigm” attests. This essay seeks to provide that new model and to do so by grounding the “right of the people to keep and bear arms” in eighteenth-century concepts of rights, not those of the twenty-first century, and to contextualize the right to bear arms in an eighteenth-century political struggle now largely ignored but well known to constitutional polemicists framing the Constitution and the Bill of Rights: Parliament's rebuilding of an English militia while denying the Scots the right to do so, despite Scotland's history and its claimed constitutional rights according to its coequal status in Great Britain. That struggle nevertheless remains a missing context that prefigured American debates over constituting and guaranteeing local militias in the coequal states of the federal union established by the United States Constitution in 1787 and 1788. Once the time came for seeking a written guarantee of local militia effectiveness in the federal Constitution, the language and substance of this transatlantic legacy had great influence. As experience, they gave political urgency to the drafting and ratification of the Second Amendment; as a theory of rights, they embodied an eighteenth-century individual right exercised collectively.

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1. “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed” (U.S. Constitution, amend. 2; ratified December 15, 1791).

2. Fischer, David Hackett, Historians' Fallacies: Toward a Logic of Historical Thought (New York: Harper & Row, 1970), 912.

3. Cornell, Saul, “‘Don't Know Much About History’: The Current Crisis in Second Amendment Scholarship,” Northern Kentucky Law Review 29 (2002): 657.

4. Quentin Skinner has ably explained how apparent historical paradoxes can deflect us from unspoken but fundamental underlying political beliefs and lead us to fail “to identify some local canon of rational acceptability.” Skinner, Quentin, “A Reply to My Critics,” in Meaning and Context: Quentin Skinner and His Critics, ed. Tully, James (Princeton: Princeton University Press, 1988), 244.

5. Ibid. Emphasis added.

6. Neil Richards warns against such a fallacy and expressly eschews capitalizing “framers” (“Clio and the Court: A Re-Assessment of the Supreme Court's Uses of History,” Journal of Law & Politics 13 [1997]: 845). For a succinct summary of the way the plurality of viewpoints among both Federalists and Antifederalists has undergone “homogenizing” into two distinct groups, see Cornell, Saul A., The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788–1828 (Chapel Hill: University of North Carolina Press, 1998), 68.

7. A Discourse upon the Exposicion & Understanding of Statutes: With Sir Thomas Egerton's Additions, ed. Thorne, Samuel E. (San Marino: Huntington Library, 1942), 151. Lesione be guilty of an ahistorical use of Egerton, it must be noted that his work referred to “the Exposicion and Understanding of Statutes,” and not to their “interpretation,” a term that connoted far more judicial authority than he or anyone else at the time would have accepted.

8. The term “originalism” dates from 1980, when Paul Brest introduced it in a strenuous critique of “the familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of the adopters.” Brest was responding, of course, to an argument already “familiar,” and since 1980 the debate over that term has generated a vast literature of articles, books, and law review symposia. See, for example, Rakove, Jack N., Original Meanings: Politics and Ideas in the Making of the Constitution (New York: A. A. Knopf, 1996), esp. chap. 1, “The Perils of Originalism,” 3–22; also, his collection of a range of opinions on both sides of the controversy in Interpreting the Constitution (Boston: Bedford Books, 1990). See also the special symposium issue, “Fidelity in Constitutional Theory,” Fordham Law Review 65 (1997).

9. 307 U.S. 174, at 178. In his opinion, Associate Justice James McReynolds cited “the debates in the [Constitutional] Convention, the history and legislation of Colonies and States, and the writings of approved commentators,” including one contemporary historian (ibid., 178–82). In 1983 the Supreme Court denied certiorari in Quilici v, Village of Morton Grove, holding that the Second Amendment did not apply to the possession of handguns at issue (695 F. 2d 261 [7th Cir. 1982], cert denied, 464 U.S. 863 [1983]). One cannot infer an opinion on the merits of a case from a denial of certiorari, however.

10. On the emergence of this controversy in the legal academy, see Bogus, Carl T., “The History and Politics of the Second Amendment: A Primer,” Chicago-Kent Law Review 76 (2000): 325. For a chronologically arranged bibliography of the competing interpretations, see the table and appendix to Robert J. Spitzer, “Lost and Found: Researching the Second Amendment,” in ibid., 384–401. Glenn Harlan Reynolds offers the term “Standard Model” in his “A Critical Guide to the Second Amendment,” Tennessee Law Review 62 (1995): 461–512.

11. Banner, Stuart, “Legal History and Legal Scholarship,” Washington University Law Quarterly 76 (1998): 37, 40.

12. Jack N. Rakove puts its clearly in describing his goals in finding the “meaning” of the Constitution's text: “[T]to what extent did the structure of debate and decision-making in 1787–88 enable a coherent set of intentions and understandings to form around the text of the Constitution?” and “[W]hen we do ask what the framers and ratifiers thought about particular subjects, how do we reconstruct their ideas and concerns?” (Original Meanings, xiv). Jack P. Greene addresses the way people in the past attempted to articulate their place in history as “the daunting task of trying to render it comprehensible, both to those who belong to it and those who do not, … by identifying and defining those common features of behavior and belief, of collective and individual experience….” (“The Intellectual Reconstruction of Virginia in the Age of Jefferson,” in Jeffersonian Legacies, ed. Onuf, Peter S. [Charlottesville: University Press of Virginia, 1993], 225).

13. For this reason, the present essay does not deal with questions concerning the subsequent impact of the fierce political contests of the Federalist era. Nor does it address the impact of the Fourteenth Amendment and the incorporation of the amendment, discussed by Amar, Akhil Reed in The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998), 4659, 257–66, and by Yassky, David, “The Second Amendment: Structure, History, and Constitutional Change,” Michigan Law Review 99 (2000): 651–60; nor does it discuss the proposition that the amendment might be “translated” to contemporary issues, as suggested in the general model presented by Lessig, Lawrence, “Fidelity as Translation: Fidelity as Constraint,” Fordham Law Review 65 (1997): 13651433, with comments to 1517; or by Rosen, Jeffrey, “Translating the Privileges and Immunities Clause,” George Washington University Law Review 6 (1998): 1241–68, with comments to 1297.

14. Malcolm, Joyce Lee, To Keep and Bear Arms: The Origins of an Anglo-American Right (Cambridge: Harvard University Press, 1994), xii.

15. John Phillip Reid, perhaps the most notable scholar of the transatlantic antecedents of American Revolutionary legal thought, notably discusses “The Britishness of Liberty” in his The Concept of Liberty in the Age of the American Revolution (Chicago: University of Chicago Press, 1988), 14–17. See, generally, Colley, Linda, Britons: Forging the Nation, 1707–1837 (New Haven: Yale University Press, 1992), 3043. In recent years, historians have shown how a broadened “British” perspective illuminates the history of both the British Isles and its far-flung colonies. See “Forum: The New British History in Atlantic Perspective,” American Historical Review 104 (1999): 426–500. Especially pertinent are the contributions of David Armitage, Ned Landsman, and Eliga Gould.

16. Bailyn, Bernard and Clive, John, “England's Cultural Provinces: Scotland and America,” William and Mary Quarterly, 3d. ser., 11 (1954): 209–10. On the “‘country’ vision of English politics” held by “anti-Court independents within Parliament and the disaffected without,” see Bailyn, Bernard, Ideological Origins of the American Revolution (Cambridge: Harvard University Press, 1967): 3536. Scottish radicals chafed at their country's subordination under what they sneeringly called “the celebrated Union,” and the American Revolution provided not only a democratizing example to emulate, but an argument that the Scots, too, should seek “a wise, virtuous, and independent government” for Scotland (Durey, Michael, Transatlantic Radicals and the Early American Republic (Lawrence: University Press of Kansas, 1997), 74; Oxford English Dictionary, http://dictionary.oed.com, s.v. “whig”).

17. Robbins, Caroline, The Eighteenth-Century Commonwealthman: Studies in the Transmission, Development and Circumstance of English Liberal Thought from the Restoration of Charles II until the War with the Thirteen Colonies (New York: Atheneum, 1959). Robbins labels this group as small and ultimately unsuccessful in English politics, but important for having “served to maintain a revolutionary tradition there and to link the histories of English struggles against tyranny in one century with those of American efforts in another. The American constitution employs many of the devices the Real Whigs vainly besought Englishmen to adopt and in it must be found their abiding memorial” (ibid., 4). On “Power and Liberty: A Theory of Politics” in Revolutionary America, see Bailyn, Ideological Origins, chap. 3, 55–93.

18. On how colonial Americans recognized their role in the larger sweep of the history of liberty, see Konig, David Thomas, “Constitutional Contexts: The Theory of History and the Process of Constitutional Change in Revolutionary America,” in Constitutionalism and American Culture: Writing the New Constitutional History, ed. Van Burkleo, Sandra F., Hall, Kermit, and Kaczorowski, Robert J. (Lawrence: University Press of Kansas, 2002), 328.

19. Boyer, Paul S., “Borrowed Rhetoric: The Massachusetts Excise Controversy of 1754,” William and Mary Quarterly, 3d. ser., 21 (1964): 328–51. The episode in question reached back to a British controversy of 1733.

20. Burgh, James, “Conclusion,” in Political Disquisitions: An Enquiry into Public Errors, Defects, and Abuses. Illustrated by, and established upon Facts and Remarks, extracted from a variety of Authors, ancient and modern. Calculated to draw the timely attention of Government and People to a due Consideration of the Necessity, and the Means, of Reforming those Errors, Defects, and Abuses: of Restoring the Constitution, and Saving the State, 3 vols. (Philadelphia, 1775), 3: 267. Burgh's and Franklin's mutual affinity is worth noting, especially in view of the similarities between the former's Dignity of Human Nature (1754) and the latter's Poor Richard's Almanack, which was published from 1733 to 1758. In fact, the authorship of “The Colonist's Advocate” letters (1770) has been attributed to both men. Hay, Carla, “Benjamin Franklin, James Burgh, and the Authorship of “The Colonist's Advocate” Letters,” William and Mary Quarterly, 3rd ser., 32 (1975): 111–24. Whoever the author, what is significant for a proper appreciation of this shared transatlantic political culture is that this work, like so many others at the time, was “a work of compilation rather than an original effort.” Hay, ibid., 120, reminds us that sharing and borrowing were characteristic of eighteenth-century political discourse.

21. The Federalist #56. The edition cited herein is that of Cooke, Jacob E., The Federalist (Middletown: Wesleyan University Press, 1961), citation at 382. Bailyn labels Burgh's work the “key book” of the Revolutionary generation (Ideological Origins, 41). Oscar, and Handlin, Mary, “James Burgh and Revolutionary Theory,” Proceedings of the Massachusetts Historical Society 73 (1961): 52.Adams, John, The Works of John Adams, Second President of the United States: with a Life of the Author, Notes and Illustrations by his Grandson Charles Francis Adams, 10 vols. (Boston: Little, Brown, 18501856), 9: 350–51.

22. May 29, 1776. The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780, ed. Oscar, and Handlin, Mary (Cambridge: Harvard University Press, 1966), 91.

23. I am indebted to Prof. Richard Sher for bringing Bell's edition of Common Sense and the list of subscribers in the Philadelphia edition of the Disquisitions to my attention. The list can be found at the beginning of volume III. In advertising the American edition, Burgh announced that this newly completed third volume was “peculiarly necessary at this Time for all the Friends of CONSTITUTIONAL LIBERTY, whether Britons or Americans.” Jefferson, To Randolph, Thomas Mann, May 30, 1790, The Papers of Thomas Jefferson, ed. Boyd, Julian P. et al., 28 vols. (Princeton: Princeton University Press, 1950-), 16: 449.

24. Robbins, , Commonwealthman, 364–65.

25. Burgh, Political Disquisitions, 2: vii; “Conclusion,” 279, 3: 336.

26. John Jay, The Federalist #5, 24.

27. Malcolm, To Keep and Bear Arms, largely confines itself to the seventeenth century and then leaps forward in time to 1791 without mention of the profound eighteenth-century events and struggles that intervened and provided a powerful cautionary history lesson to those whose reservations about the Constitution led to the drafting and ratification of the Second Amendment. For a critique, see Schwoerer, Lois, “To Hold and Bear Arms: The English Perspective,” Chicago-Kent Law Review 76 (2000): 2760.

28. Daniel Walker Howe argues for a Scottish social and intellectual, though less explicitly political, perspective in “Why the Scottish Enlightenment Was Useful to the Framers of the American Constitution,” Comparative Studies in Society and History 31 (1989): 572–87. For Scottish Enlightenment influence on state constitutions, see Durey, Transatlantic Radicals, 51. Scottish radicals chafed at their country's subordination under “the celebrated Union,” and the American Revolution provided not only a democratizing example to emulate, but an argument that the Scots, too, should seek “a wise, virtuous, and independent government” for Scotland (ibid., 74). Also useful is Hook, Andrew, Scotland and America: A Study of Cultural Relations, 1750–1835 (Glasgow and London: Blackie, 1975).

29. James Madison's education at Princeton, whose president the Scot John Witherspoon exerted enormous influence over students, is but one example. Brant, Irving, James Madison. The Virginia Revolutionist, 6 vols. (Indianapolis: Bobbs-Merrill, 1941), 1: 77. Witherspoon suggested readings that were heavily weighted toward the Scottish Enlightenment. William Smith of Aberdeen became the first provost of the College of Philadelphia, and fellow Aberdonian William Small was Thomas Jefferson's mentor at the College of William and Mary. Robbins, Commonwealthman, 194. Born and educated in Scotland, James Wilson was deeply influenced by the education he received at St. Andrews and Edinburgh. Hall, Mark David, The Political and Legal Philosophy of James Wilson, 1742–1798 (Columbia: University of Missouri Press, 1997), 89. For a survey of the importance accorded this connection in American historiography, see Richard Sher's remarks in Sher, Richard B. and Smitten, Jeffrey R., eds., Scotland and America in the Age of the Enlightenment (Princeton: Princeton University Press, 1990), 113.

30. Robertson, John, The Scottish Enlightenment and the Militia Issue (Edinburgh: J. Donald, 1985), 6.Western, J. R., The English Militia in the Eighteenth Century. The Story of a Political Issue, 1660–1802 (London: Routledge & Kegan Paul, 1965), 162.

31. 1 Geo. I, c. 54 (1715).

32. 19 Geo. II, c. 39 (1746).

33. Speck, W. A., The Butcher: The Duke of Cumberland and the Suppression of the 45 (Oxford: Blackwell, 1981), 173.

34. Brown, Peter Hume, History of Scotland, 3 vols. (Cambridge: Cambridge University Press, 1909), 3: 328n.

35. Robertson, William, The History of Scotland during the Reigns of Queen Mary, and King James VI. Till his Accession to the Crown of England, with a Review of Scottish History to that Period, 11th edn. (1787; reprint Aberdeen: G. Clark and Son, 1847), 386–87. The first edition appeared in 1761. A New York edition appeared in 1787.

36. Burgh, Political Disquisitions, 3: 351; 2: 412, 417. John Robertson, Scottish Enlightenment and the Militia, 9. Robertson provides other examples of British writers whose works enjoyed a wide readership and powerful influence in the American Revolution, especially in the shared opposition to a standing army. Among them were Andrew Fletcher of Saltoun, whose impact will be discussed below.

37. Speck, The Butcher, 137–73 (quotations at 145, 169). Linda Colley more dispassionately describes the contemporary impact of this campaign and observes, that “the genocide that had reputedly followed the Battle of Culloden was reminder enough of the English capacity for racialism and hate” (Britons, 117).

38. Carlyle, Alexander, The Question Relating to a Scots Militia Considered in a Letter to the Lords and Gentlemen who have Concerted the Form of a Law for that Establishment (Edinburgh, 1760), 1213.A True Account of the Behaviour and Conduct of Archibald Stewart, Esq.; late Provost of Edinburgh (1748), cited by Raynor, David R., ed., “Sister Peg”: A Pamphlet Hitherto Unknown by David Hume (Cambridge: Cambridge University Press, 1982), 2. Hume's authorship of “Sister Peg” is open to serious doubt, and Adam Ferguson is the more likely author; on this question, see n. 46, below.

39. Critchley, T. A., The Conquest of Violence: Order and Liberty in Britain (London: Constable, 1970), 5967.Gould, Eliga, The Persistence of Empire: British Political Culture in the Age of the American Revolution (Chapel Hill: University of North Carolina Press, 2000), 72105.

40. 29 Geo. II, c. 29 (1756).

41. 30 Geo. II, c. 25 (1757). The law required that “all the muskets delivered for the service of the militia, shall be marked distinctly in some visible place, with the letter M, and the name of the county, riding or place, to which they belong” (ibid., sec. 42). No weapons were to be issued until the unit had been constituted (sec. 35), and militiamen were to return them after exercises (sec. 36). Colonels or county lieutenants were authorized to seize weapons if “necessary to the peace of the kingdom” (sec. 33).

42. Gould, Persistence, 72–105. Parliament in 1759 had to respond to the “little progress” made in recruiting in some counties (32 Geo. II, c. 20 [1759]). A year later, Parliament was forced to act when recruitment was “suspended” in certain counties owing to a lack of those “qualified and willing to accept commissions” (33 Geo. II, c. 20 [1760]). Not all Scots favored the militia, and many—especially the poor—resented the possibility of enforced service; for the dissenters, see Gould, Persistence, 95–96. Nevertheless, the demand for a Scottish militia enjoyed broad support among Scots. Brown, History of Scotland, 3: 341–42, describes this support as existing despite lingering fears that a Scottish militia might be turned to Jacobite purposes.

43. Robertson, Militia Issue, 143, 157, 108–12. Western, English Militia, 167. Carlyle, Scots Militia, 19, 29, 30–31, 36. See also “Abstract of a plan for a militia for Scotland,” Edinburgh Chronicle, March 17 to 19, 1760, at 9.

44. 30 Geo. II, c. 25, Preamble, continuing, “and whereas the laws now in being for the regulation of the militia are defective and ineffectual. … ” Robertson, Militia Issue, 100–101. Ferguson, Adam, An Essay on the History of Civil Society, ed. Forbes, Duncan (1767; reprint Edinburgh: Edinburgh University Press, 1966), 271. The importance of the civic humanist tradition of virtue in the militia cause is the subject of Robertson, Militia Issue. Additional discussion can be found in Sher, Richard B., “Adam Ferguson, Adam Smith, and the Problem of National Defense,” Journal of Modern History 61 (1989): 242–43.

45. Cited by Burgh, Political Disquisitions, 2: 419–21. Thornton introduced a militia bill in 1752 and offered vigorous support for it in his pamphlet, The Counterpoise, being Thoughts on a Militia and Standing Army (London, 1752).

46. The History of the Proceedings in the Case of Margaret, Commonly called Peg, only lawful Sister to John Bull, Esq. (London, 1760), 79. Sher, Richard B. convincingly disputes Hume's authorship in Philosophical Books, 24 (1983): 8591.

47. [Dempster, George,] Reasons for Extending the Militia Acts to the Disarmed Counties of Scotland (Edinburgh, 1760), 11, 16, 18, 20. Adam Ferguson, Reflections Previous to the Establishment of a Militia (1756), cited by Sher, Richard B., Church and University in the Scottish Enlightenment: The Moderate Literati of Edinburgh (Princeton: Princeton University Press, 1985), 221.

48. Western, J. R., “The Formation of the Scottish Militia in 1797,” Scottish Historical Review 34 (1955): 118. 37 Geo. III, c. 103 (1796). The preamble to this act reads, “Whereas it has been found, from experience, that the well ordering and disciplining the militia in England and Wales, has essentially contributed to the safety of the united kingdom; and whereas it would further contribute to the same purpose, and tend to repel any attempt which the enemies of this country may make to effect a descent upon this kingdom, if a well ordered and disciplined militia were established in that part of the united kingdom called Scotland; and whereas the laws in being for the regulation of the fencible men, or militia, in Scotland, are defective and ineffectual….”

49. Burgh, Political Disquisitions, 2: 395. Edinburgh Chronicle, March 31-April 2, 1760, 60, col. 3, reprinting an article from the Westminster Journal of March 22, 1760.

50. Landsman, Ned, “The Legacy of British Union for the North American Colonies: Provincial Elites and the Problem of Imperial Union,” in A Union for Empire: Political Thought and the British Union of 1707, ed. Robertson, John (Cambridge: Cambridge University Press), 297. J. G. A. Pocock, “Empire, State, and Confederation: The War of American Independence as a Crisis in Multiple Monarchy,” in ibid., 338.

51. Robertson, Militia Issue, 52. Mitchison, Rosalind, “The Government and the Highlands, 1701–1745,” in Scotland in the Age of Improvement. Essays in Scottish History in the Eighteenth Century, ed. Phillipson, N. T. and Mitchison, Rosalind (Edinburgh: University Press, [1970] 1996), 40. The Crown would appoint lieutenants in the reconstituted Scottish militia. Dempster, Reasons for Extending, 9, 15. Antimilitia legislators objected to local control even over the recommendations of Henry Dundas, the powerful solicitor general of Scotland, dubbed “Henry the Ninth,” that a Scottish “melletia” would help stabilize society and end the massive emigration of Scots. Bailyn, Bernard, Voyagers to the West. A Passage in the Peopling of America on the Eve of the Revolution (New York: Knopf, 1986), 4651. Burgh, Political Disquisitions, 2: 404, 399–400 (quoting Fletcher). Robertson, Militia Issue, 136–37.

52. Gould, Eliga H., “To Strengthen the King's Hands: Dynastic Legitimacy, Militia Reform and the Idea of National Unity, 1745–1760,” Historical Journal 34 (1991): 329–48. “Act for the Security of the Kingdom,” in Fletcher, Andrew, Political Works, ed. Robertson, John (Cambridge: Cambridge University Press, 1997), 139. Robertson defines “fencible men” as “those capable of bearing arms” (ibid., 139n).

53. As argued, for example, by Halbrook, Stephen P., That Every Man Be Armed: The Evolution of a Constitutional Right, 2nd ed. (Oakland, Cal.: The Independent Institute, 1994), 47.

54. Andrew Fletcher, “A Discourse of Government With relation to Militia's” [1698], in Political Works, ed. Robertson, 24–26. Fletcher, “Two Discourses Concerning the Affairs of Scotland; Written in the Year 1698,” ibid., 68–69.

55. Adam Smith, for example, applied his belief in the superiority of the specialization of labor to argue that “the progress of manufactures, and the improvement in the art of war” made universal militia service harmful to the economy and produced a military force inferior to a standing army (An Inquiry into the Nature and Causes of the Wealth of Nations, ed. Campbell, R. H. and Skinner, Andrew S., 2 vols. [Indianapolis: Liberty Fund, 1981], 2: 689708).

56. “The Declaration of the Lords Spiritual and Temporal, and Commons Assembled at Westrminster,” reprinted in Declaring Rights. A Brief History with Documents, ed. Rakove, Jack N. (Boston: Bedford Books, 1998), 4145, with pertinent clauses at 42, 43. Because the Declaration had no constitutional force, Parliament had to enact its provisions into law, and did so; it did not alter the language cited here. 1 Wm. and Mary, sess. 2, c. 2 (1689). Fear of arms-bearing Catholics also infected the debate on an Irish militia, where the inclusion of Catholics was so dreaded that not until 1793 was a bill approved to permit this. Bartlett, Thomas, “An End to Moral Economy: The Irish Militia Disturbances of 1793,” Past and Present 99 (1988): 4164.

57. 30 Geo. II, c. 25, secs, xvi, xix.

58. Burgh, Political Disquisitions, 3: 336, 360–61; 2:391, 401, 402.

59. Primus, Richard, The American Idea of Rights (Cambridge: Cambridge University Press, 1999), 85, 97, 102–3.

60. Whittemore, Charles P., A General of the Revolution: John Sullivan of New Hampshire (New York: Columbia University Press, 1961), 13.

61. Adams to Burgh, December 28, 1774, Works, 9: 351–52.

62. Jefferson to Robert Walsh, December 4, 1818, The Works of Thomas Jefferson, ed. Paul Leicester Ford, 12 vols. (New York: G. P. Putnam's Sons, 1904–5), 10: 119–20, where he mistakenly recalls writing “Scotch and other foreign auxiliaries.” Becker, Carl L., The Declaration of Independence. A Study of the History of Political Ideas (New York: Harcourt, Brace, 1922), 172. Hook, Scotland and America, 71n., posits Witherspoon's influence.

63. Brown, Stewart J., “William Robertson (1721–1793) and the Scottish Enlightenment,” in William Robertson and the Expansion of Empire, ed. Brown, Stewart J. (New York: Cambridge University Press, 1997), 2021. Josiah Quincy, Jr., “Observations on the Act of Parliament Commonly Called the Boston Port Bill; with Thoughts on Civil Society and Standing Armies” [Boston, 1774], Memoir of the Life of Josiah Quincy, Junior, of Massachusetts Bay: 1744–1775, ed. Quincy, Josiah, 3rd ed., ed. Quincy, Eliza Susan (Boston: Little, Brown, 1875), 303, 338.Journals of the Continental Congress, 1774–1789 edited from the Original Records, ed. Ford, Worthington Chauncey et al., 34 vols. (Washington: Government Printing Office, 19041937), 24: 83. Jefferson to Robert Skipwith, August 3, 1771, in The Papers of Thomas Jefferson, 1: 76–81; Jefferson to John Minor, Works, August 30, 1814, 11: 424.

64. Creating the Bill of Rights: The Documentary Record from the First Federal Congress, ed. Veit, Helen E. et al. (Baltimore: Johns Hopkins University Press, 1991), 182.

65. Higginbotham continues his observation that the subject also shows “finally, how the issue was gradually resolved in the first half of the nineteenth century,” though the present essay stops short of that question. Higginbotham, Don, “The Federalized Militia Debate: A Neglected Aspect of Second Amendment Scholarship,” William and Mary Quarterly, 3rd ser., 55 (1998): 3958, with quotation at 40.

66. Letters and Papers of Major-General John Sullivan, Continental Army, ed. Otis G. Hammond, New Hampshire Historical Collections, 13–15, 3 vols. (Concord, 1930–39), 3: 385–86, 407.

67. A Plan for the General Arrangement of the Militia of the United States (New York, 1786), in [Evans, Charles], Early American Imprints, 1639–1800, ed. Shipton, Clifford K., (Worcester: American Antiquarian Society, 1963-), microcard #20076, at 6, 7.

68. The Statutes at Large; Being a Collection of all the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, comp. William Waller Hening [1819–23], 13 vols. (Charlottesville: University Press of Virginia, 1969), 8: 592–93 (1772).

69. Like the Third Amendment, the second must be viewed within the context of federalism. The four states that dealt with the quartering of troops in their own constitutions or declarations of rights all banned it in peacetime but granted to their legislatures the authority to order it in wartime. Fields, William S. and Hardy, David T., “The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History,” American Journal of Legal History 35 (1991): 419–20.

70. Jefferson to Adams, May 16, 1777, The Adams-Jefferson Letters: The Complete Correspondence Between Thomas Jefferson and Abigail and John Adams, ed. Cappon, Lester J. (Chapel Hill: University of North Carolina Press, 1988), 4. Adams to Jefferson, May 26, 1777, ibid., 5.

71. On the extent of this debate, see Robertson, Union for Empire, passim.

72. Journals of the Continental Congress, 5: 1082.

73. The Records of the Federal Convention of 1787, ed. Farrand, Max, rev. ed., (New Haven: Yale University Press, 1937), 1: 405. During this visit—he toured again in 1771—Franklin had been entertained by Lord Kames, David Hume, Adam Ferguson, Adam Smith, and William Robertson. Hook, Scotland and America, 18–19.

74. The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, ed. Elliot, Jonathan, 5 vols. (1888; reprint New York: Burt Franklin, 1974), 4: 289, 299.

75. Ibid., 3:319.

76. Ibid., 3: 196.

77. “Additional Memorandum for the Convention of Virginia in 1788, on the Federal Constitution,” in Letters and Other Writings of James Madison, Fourth President of the United States, 4 vols. (Philadelphia: J. B. Lippincott, 1865), 1: 390–2

78. Veit, Creating the Bill of Rights, 19. Though nodding to popular sentiment in this description, Hamilton was taking issue with the importance of the militia in this essay. Hamilton, The Federalist #25,161. A Citizen of the State of Maryland, “Remarks on a Standing Army,” April 12, 1787, in Documentary History of the Ratification of the Constitution, ed. Jensen, Merrill, Kaminski, John P., and Saladino, Gaspare J., 19 vols. (Madison: State Historical Society of Wisconsin, 1976-), 17: 89. The English Bill of Rights declared that “the Subjects which are protestants may have Arms for their Defence suitable to their Condition, and as allowed by law.”

79. Notes of Debates in the Federal Convention of 1787 Reported by James Madison (Athens: Ohio University Press, 1966), 483.

80. Ibid., 515. Mutinies by troops protesting the failure of their state governments to provision or pay them took place in 1777, 1780, 1781, and 1783. Higginbotham, Don, The War of American Independence: Military Attitudes, Policies, and Practice 1763–1789 (1971; reprint Boston: Northeastern University Press, 1983), 403–5. United States Constitution, art. 1, sec. 8, clause 16. In reciting the legislative history of the militia clauses, Jack Rakove concludes that the discussion surrounding them “explicitly recognized that the militia was to be the joint object of congressional and state legislation” (“The Second Amendment as the Highest State of Originalism,” Chicago-Kent Law Review 76 [2000]: 129–32).

81. Documentary History of the Ratification, 10: 1307.

82. The Federalist #73, 497. Publius did not specify the bill vetoed, however.

83. “To the Masachusetts Convention,” in The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification, comp. Bailyn, Bernard, 2 vols. (New York: Library of America, 1993), 2: 159, citing the Massachusetts Gazette, February 5, 1788. Elliot, Debates, 2: 403. The trope of “slavery” was “a central concept in the eighteenth-century discourse.” Bailyn, Ideological Origins, 234. It is worthy of note that the slave had been born free but had been degraded to unfree status. Documentary History, 10: 1306.

84. Madison, Notes, 485. Szatmary, David P., Shays' Rebellion. The Making of an Agrarian Insurrection (Amherst: University of Massachusetts Press, 1980), 7879. Whittemore, General of the Revolution, 204.

85. Pencak, William, “'The Fine Theoretic Government of Massachusetts is Prostrated to the Earth': The Response to Shays' Rebellion Reconsidered,” in In Debt to Shays: The Bicentennial of an Agrarian Rebellion, ed. Gross, Robert A. (Charlottesville: University Press of Virginia, 1993), 128–32, 142.

86. Ibid., 124. Cornell, Saul, The Other Founders. Antifederalism and the Dissenting Tradition in America, 1788–1828 (Chapel Hill: University of North Carolina Press, 1999), 109–14. George Washington referred to “combustibles in every State” endangering the republic with threats of violent insurrection. Higginbotham, “Federalized Militia Debate,” 43–14.

87. Madison, Notes, 513. Akhil Reed Amar recognizes the presence of a general, nonspecific fear of being disarmed: “The Second Amendment was designed to make clear that any such congressional action was off-limits” (Bill of Rights, 50). He provides no historical background or support for this claim, however. Debate on the Constitution, 2: 552.

88. Bailyn, Voyagers, 502–6, quotation at 503.

89. For an examination of these competing notions of the legitimate use of arms, see Lee, Wayne E., Crowds and Soldiers in Revolutionary North Carolina: The Culture of Violence in Riot and War (Gainesville: University Press of Florida, 2001), 4647, 72–73, 94. “An Act for Preventing Tumultuous and Riotous Assemblies” can be found in full in The Regulators in North Carolina: A Documentary History, 1759–1776, ed. Powell, William S., Huhta, James K., and Farnham, Thomas J. (Raleigh: [North Carolina] State Dept. of Archives and History, 1971), 327–32. Anyone opposing the militia and refusing to lay down his arms was declared a traitor.

90. Meyer, Duane, The Highland Scots of North Carolina (Raleigh: [North Carolina] State Department of Archives and History, 1963), 6568, notes that many Highlanders had come from Argyllshire, home of the Campbells and the Duke of Argyle, who had defeated the Jacobites in 1715. Elliot, Debates, 4: 203, 244–45. Compare with Veit et al., Creating the Bill of Rights, 12, 19–20. Congress submitted the Bill of Rights to the states in September 1789, and North Carolina ratified the Constitution in November. Trenholme, Louise Irby, The Ratification of the Federal Constitution in North Carolina, Columbia University Studies in History, Economics and Public Law #363 (New York: Columbia University, 1932), 233.

91. Mason to Jefferson, May 26, 1787, Documentary History of the Ratification, 18: 79. Elliot, Debates, 3: 378–80; Documentary History, 17: 252, 253.

92. Hamilton, The Federalist #25, 162; #29, 183–84. Madison, ibid., #46, 321. “Federal Farmer,” “An Additional Number of Letters to the Republican,” May 2, 1788, Documentary History, 17: 363; 2: 509.

93. Ibid., 10: 1314. “An Act for Forming and Regulating the Militia Within the State of New Hampshire” [1787].

94. Elliot, Debates, 3: 381. Documentary History, 17: 142. Some states, in fact, extended the right to vote to propertyless war veterans. Amar notes this fact (Bill of Rights, 48–49) but joins war service and voting as cause and effect, the latter being a reward for the former. They are more properly seen as substantively very similar rights deriving from the same principle. In fact, the act disarming the Highlands in 1715 allowed peers and any man possessing £400 “Scots, or more, or who is otherwise qualified to vote at elections of parliamentmen” to keep weapons. 1 Geo. I, c. 54. It repeated this qualification in the 1746 disarming statute. 19 Geo. II, c. 39.

95. U.S. Constitution, art. 1, sec. 4, clause 1; art. 1, sec. 8, clause 16.

96. Levinson, Sanford, “The Embarrassing Second Amendment,” Yale Law Journal 99 (1989): 644, 645.Volokh, Eugene, “The Commonplace Second Amendment,” New York University Law Review 73 (1998): 793. Volokh argues that his interpretation of the meaning of the Preamble is “consistent with the general rules of statutory construction used in the late 1700s and 1800s,” but does not adduce any eighteenth-century authorities. He cites, instead, three sources from 1848, 1857, and 1882—authorities whose ideas of statutory construction reflected major changes that had taken place since the 1700s. Ibid., 808, and n. 51.

97. For discussions of this variety, as well as of the historical pressures acting on their construction in this period, see Popkin, William D., Statutes in Court: The History of Statutory Interpretation (Durham: Duke University Press, 1999), 757; and Lieberman, David, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989), passim.

98. Blackstone, William, Commentaries on the Laws of England [1755–69], facsimile, 4 vols. (Chicago: University of Chicago Press, 1979), 1: 5960.

99. Konig, David Thomas, “Legal Fictions and the Rule(s) of Law: The Jeffersonian Critique of Common-Law Adjudication,” in The Many Legalities of Early America, ed. Tomlins, Christopher L. and Mann, Bruce H. (Chapel Hill: University of North Carolina Press, 2001), 97117. As a law student, Jefferson commonplaced a case that turned on the meaning of a preamble. Item #469 in (unpaged) Legal Commonplace Book, manuscript in Library of Congress.

100. “Autobiography,” in The Writings of Thomas Jefferson, ed. Lipscomb, Andrew A. and Bergh, Albert Ellery, 20 vols. (Washington, D.C.: Thomas Jefferson Memorial Foundation, 19031904) 1:67.

101. Jefferson, Thomas, A Manual of Parliamentary Practice: for the Use of the Senate of the United States, 2nd ed. (George Town: Milligan and Cooper, 1812), in Jefferson's Parliamentary Writings, ed. Howell, Wilbur Samuel (Princeton: Princeton University Press, 1988), 383–84. Jefferson's citations were, respectively, Grey, Anchitell, Debates of the House of Commons, from the Year 1667 to the Year 1694 (London, 1769), 431; Scobell, Henry, Memorials of the Method and Manner of Proceedings in Parliament in Passing Bills, Together with Several Rules & Customs, which by Long and Constant Practice Have Obtained the Name of Orders of the House, Gathered by Observation and out of the Journal Books from the Time of Edward 6 (London, 1670), 50.

102. Lieberman, Province, 187. Blackstone, Commentaries, 1: 60. Jacob, Giles, A New Law-Dictionary…. The Sixth Edition. The Law-Proceedings being done into English, with Great Additions and Improvements, to this time (London, 1750), s.v. “Statute.”

103. Blackstone, Commentaries, 1: 86. The Latin translates, “as a lasting testimony of the thing.” A Translation of All the Greek, Latin, Italian, and French Quotations which occur in Blackstone's Commentaries. …, ed. Jones, J. W. (Philadelphia: T & J. W. Johnson, 1889), 10.

104. Blackstone, Commentaries, 1: 138–39. Emden, Cecil S., The People and the Constitution: Being a History of the Development of the People's Influence in British Government, 2nd ed. (Oxford: Clarendon, 1956), 7576.

105. Documentary History, 10: 1306.

106. The final House version also contained several slight stylistic changes. The progress of textual change can be followed in The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, ed. Cogan, Neil H. (New York: Oxford University Press, 1997), 169–76.

107. Rakove, “Highest Form of Originalism,” 126, 128–29, 159.

108. Primus, American Idea, 102–3.

109. Levinson describes each of these as an “ignored patch of text in our constitutional conversations” (“Embarrassing Second Amendment,” 640). See also Yassky, “Second Amendment,” 665.

110. Rakove, “Highest Form of Originalism,” 164–65. Richards, “Clio,” 859.

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Law and History Review
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