A  WELL  REGULATED  MILITIA


The Founding  Fathers  and  the  Origins  of  Gun  Control  in  America


CHAPTER THREE


"THE TRUE PALLADIUM OF LIBERTY"

FEDERALISTS, JEFFERSONIANS, AND THE SECOND AMENDMENT   

The first systematic effort to explore the role of the Second Amendment in America's new constitutional system was undertaken by the learned Virginian judge St. George Tucker. These observations were made in a series of lectures at the College of William and Mary, where Tucker held the prestigious chair in Law and Police. Tucker believed that The Federalist provided a superb analysis of the theoretical foundations of the Constitution, but he lamented that "Publius" had not treated the defects of the Constitution candidly, something that Tucker resolved to do in his lectures. The other impetus for organizing his thoughts about the Constitution in a systematic manner was the recent adoption of the first ten amendments to the Constitution. Tucker believed it was vital to provide his students with a detailed guide to the new law of the land.1

Tucker's analysis reflected his own moderate Anti-Federalism. Although he had initially opposed ratification, he appreciated that a Federalist victory was likely and revised his views accordingly. He came to believe that, with proper amendments, the Constitution could effectively protect both the rights of the states and individual liberty.     


Admittedly Tucker was not entirely pleased with the final shape of the Bill of Rights, which, in his opinion, did not sufficiently scale back the powers of the federal government. Still, he expressed guarded optimism that America's new constitutional system could weather any future storms on the horizon.2


Tucker described the Second Amendment as a necessary concession to Anti-Federalists who feared that the state militias might be disarmed by the federal government. In his account, the Second Amendment was cast as a right of the states, and he explicitly connected it with Article I, Section 8's discussion of the concurrent authority over the militia enjoyed by the states and the federal government. Tucker went even further, arguing that the Second Amendment gave the individual states the awesome power of "resisting the Laws of the federal Government, or of shaking off the Union." Tucker anticipated the criticism of those who felt such a stance would inevitably lead to anarchy and disunion.


To contend that such a power would be dangerous for the reasons above- mentioned, would be subversive of every principle of Freedom in our Government; of which the first Congress appear to have been sensible by proposing an Amendment to the Constitution, which has since been ratified and has become a part of it, viz. "That 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."


To underscore the fact that the Second Amendment functioned as a check within the federal system, Tucker explicitly linked the Second Amendment to another provision that dealt with federalism, the Tenth Amendment. In his earliest gloss on the Second Amendment, drafted shortly after its adoption, Tucker interpreted the right to bear arms within the context of federalism as a right of the states to arm their militia, and if necessary use them against the federal government.3


The idea that the Constitution gave the states the power to use force of arms to resist potential federal tyranny was alarming to many Federalists. In a grand jury charge delivered at roughly the same time that Tucker was lecturing on law at William and Mary Judge Alexander Addison reminded jurors in Pennsylvania that "if one law is repealed, at the call of armed men, government is destroyed: no law will have any force." In Addison's view, an appeal to arms was in essence "a declaration of independence." Addison clearly struggled with this issue because he returned to the theme again in another grand jury charge and refined his analysis somewhat. While firmly rejecting the notion that armed resistance was ever legitimate in cases of an obnoxious law, he conceded that armed resistance might be theoretically justifiable in the case of an unconstitutional law, hastening to add that such actions were "highly dangerous." Echoing the sentiments articulated by Alexander Hamilton in The Federalist, Addison stressed that all legal means had to be exhausted before an appeal to arms could be made. Addison sought to cloak the assertion of this right in some type of constitutional legitimacy by attempting to define how one might legally identify acts or policies qualifying for such treatment. He implicitly rejected the right of the individual states to make such determinations. In his view it was the province of the courts, not individuals or states, to determine when a law violated the constitution. Although he failed to explore the logic of his argument in detail, Addison seemed to imply that a law declared unconstitutional by a court might justify the use of arms to prevent its enforcement. Endorsing a limited right of the courts to sanction the use of force of arms to prevent an unconstitutional act was a far cry from either the popular belief in the right of the local militia to make such decisions or the Anti-Federalist view that the states retained this right.4


Addison was hardly the only person in the new nation struggling to make sense of the new Constitution and the limits of its authority. Inevitably, Americans were forced to ponder the nightmare scenarios that Federalists and Anti-Federalists had each bandied back and forth during the debate over the Constitution. What, if any, role might armed resistance play in preserving America's new constitutional system? The answer to this question forced Americans to ponder the meaning of their own revolutionary heritage. While few would have doubted the continuing legitimacy of a natural right of revolution, there was far less agreement over the possibility that there was a constitutional right of revolution built into the structure of American law The issue was sufficiently important to be formally debated by New York's Tammany Society, a fraternal organization that met regularly to engage in forensic discussions on the most pressing issues of the day. William Pitt Smith, a member of the medical faculty of Columbia College and one of the participants in that debate, took up this issue in earnest and concluded that the exercise of such a right was ultimately not compatible with constitutional government, but signaled the end of government. "A Convention in arms, supposes a people disorganized, or just emerging from a state of nature lately assumed, and claiming the rights of freemen." While the natural right of revolution could never be parted with, the notion that there could be a constitutional appeal to arms was antithetical to the idea of constitutionalism itself.5


THE WHISKEY REBELLION: THE CHALLENGE OF POPULAR RADICALISM


The question that William Pitt Smith addressed in formal debate and St. George Tucker pondered in his lectures soon proved to be a subject of more than mere academic interest. The right of revolution was tested in practice in western Pennsylvania, where farmers took up arms against the federal government as part of a protest against the whiskey excise tax.


Federalists sought to create a powerful fiscal and military state on the British model. This economic program included a plan for funding the national debt and chartering a national bank. To finance this ambitious program, Federalists followed the recommendations of George Washington s brilliant secretary of the treasury Alexander Hamilton, who pushed for higher taxes. The tax on whiskey fell particularly hard on backcountry farmers from Pennsylvania and Kentucky Western farmers distilled their grains into hard spirits, which not only fetched a higher price than grain but were easier to transport to eastern markets. Angered by the government's policy, distillers harassed excise collectors. Local whiskey distillers who complied with the tax were warned that their stills would be "mended" by "Tom the Tinker," a pseudonym used by opponents of government policy whose preferred form of tinkering was shooting at the stills of those who paid their taxes. The use of violence and intimidation to oppose the tax did not coalesce into systematic opposition at first. Anger over the tax simmered for three years before organized resistance erupted. In the summer of 1794 a group of angry protestors marched to the home of tax collector General John Neville. When the assembled crowd refused to disperse, Neville fired on the crowd, injuring several and killing one of the protestors. About a month later angry citizens assembled in arms at Braddock's Field near Pittsburgh, declaring their willingness to oppose the government policy by force of arms. What had begun as a tax protest had escalated into an armed rebellion.6


President Washington received conflicting advice from his cabinet about how to handle the Whiskey Insurrection. Hamilton was an early advocate for using force to put down the rebellion, but others with the president's ear were more cautious. Secretary of State Edmund Randolph counseled moderation. Washington sided with Hamilton, believing that anything less than "firm measures" would mean an "end to our Constitutions & laws." While Washington and Hamilton viewed the events in western Pennsylvania as a serious threat to federal authority, representatives from Pennsylvania saw the situation less ominously. Washington met with leading Pennsylvanians, including the governor, the chief justice of the state Supreme Court, the attorney general, and the secretary of state, to discuss the growing unrest in western Pennsylvania. The chief justice of the Pennsylvania Supreme Court was confident that the state courts were more than competent to deal with the civil unrest occasioned by opposition to the whiskey excise. Indeed, he argued, "the employment of a military force, at this period, would be as bad as anything that the Rioters had done—-equally unconstitutional and illegal." There was widespread agreement among the state officials present at the meeting that federal action was unnecessary.7


Washington went forward with a two-prong strategy appointing a group of federal commissioners to meet with the rebels and issuing an order to call out the militia. Simultaneously he sought a ruling from Associate Justice of the U.S. Supreme Court James Wilson that the protest was an uprising "too powerful to be suppressed by the ordinary course of judicial proceedings." Washington mobilized more than twelve thousand troops from Pennsylvania, Maryland, New Jersey, and Virginia. Hamilton enthusiastically supported this strategy; others within Washington's  cabinet feared that the federal government might do more damage than good by resorting to force.8


Few Federalists were more scathing in their denunciations of the rebels than Hamilton, who was emphatic that "there can therefore be no such thing as a 'constitutional resistance' to laws constitutionally enacted." While citizens might pursue "the repeal of a law," the actions of the rebels ."to obstruct the operation of it presents a contradiction in terms." Similar attitudes were expressed in a grand jury charge delivered by a Federalist judge in Berks County Pennsylvania, who reminded jurors that "one successful instance of a forcible opposition to law, will naturally generate others." Taking the argument a step further, he argued that the structure of American constitutionalism had rendered the right of revolution effectively obsolete. He confidently asserted that "there can be no oppression in a government constituted as that of the United States."9


Hamilton s policies not only alienated backcountry farmers, but the strongly nationalist agenda of Federalists also led many who had supported the Constitution in 1788 to join with former Anti-Federalists to create the Republican movement. Mainstream opposition to Hamilton and the Federalist agenda stopped well short of sanctioning their resort to extralegal measures. Rather than support the insurrectionary popular ideology of the rebels, the Republican and former Anti-Federalist William Findley found himself adopting a stance that ultimately placed him much closer to his Federalist opponent Hamilton than to the men who assembled in arms in Braddock's Field. "All men of discretion," Findley concluded, realized that "if they permitted government to be violently opposed, even in the execution of an obnoxious, law, the same spirit would naturally lead to the destruction of all security and order," a situation that would lead to "a state of anarchy." While opposing the tax with peaceful measures was entirely appropriate, he did not countenance "riots or any thing that might tend to promote any unconstitutional exertions." Those who took up arms against government were in Findley's view little more than "armed banditti."10


The Whiskey Rebels, following in the tradition of Shays, believed that the people might spontaneously assemble in arms to defend liberty. For these plebeian populists, the militia was an agent of the local community. The rebels regarded their own state government with no greater deference than they did the oppressive federal government responsible for the whiskey excise. The adoption of the federal Constitution and Bill of Rights had done little to dampen the ardor of those who believed that the will of the community expressed directly through the jury or the militia might supersede the acts of legislatures, or even written constitutions. From the Whiskey Rebels' point of the view, their current situation under the federal Constitution was little better than that of the colonists prior to the Revolution.


As had been true for the Shaysites before them, the Whiskey Rebels appropriated the rituals and rhetoric of the militia muster to organize themselves and give their actions legitimacy. Indeed, another Republican critic of the rebellion, Hugh Henry Brackenridge, was struck by how the rebels couched their actions in the language of the militia and consciously tried to make it seem as if they "were called out by authority, as in the case of the reviews of the militia." The rebels went to great lengths to adopt the legal forms of a militia and to persuade the outside world that "we are no mob" but had assembled in arms in an orderly manner.11


In a "circular letter" calling on western Pennsylvanians to oppose the excise, the Whiskey Rebels reminded citizens of their moral obligation to render their "personal service" and muster. A note by "Tom the Tinker" admonished those "delinquents" who did not "come forth, on the next alarm" to defend "the virtuous principles of republican liberty." The rebels not only utilized the rituals, forms, and institutional framework of the militia, they also borrowed its potent language of political obligation. Thus, the rebels did not speak in an idiom of individual rights, but used the language of civic obligations and republican liberty. They chose to assert their claims not as individuals "bearing arms," but as a community "assembling in arms," a phrasing that underscored the public and collective nature of their action. Although the rebels did not invoke the language of the Second Amendment to justify their actions, their behavior implicitly embodied the principles of the preamble, whose language asserted the ideal of the militia as the guardian of popular liberty.12


Among the most radical voices supporting the rebels were people like William Petrikin, the ardent Anti-Federalist who had led the Carlisle Rioters during the struggle over ratification. While Findley and Brackenridge refused to support the rebels' appeal to arms, Petrikin "applauded and supported" the actions of "the Glorious Sons of Liberty to the West." Petrikin, one contemporary reported, "sd a great deal agst the excise law" but also attacked "the Constitution." Robert Whitehill, another Republican from Pennsylvania who had also been a signer of the Anti-Federalist "Dissent of the Minority," opposed Petrikin and warned "it would be better to submit" since continued opposition could '"bring on a revolution." Petrikin did not dispute Whitehill's reasoning, but welcomed such an outcome. "All Revns began by force and that it was as well it should begin," reasoned Petrikin, adding, "It was time there should be a Revolution—that Congress ought either to Repeal the Law or allow these people to set up a government for themselves—& be separated from us." The right of revolution, Petrikin argued, had not been cast aside with establishment of the Constitution, and he believed that western Pennsylvanians were in exactly the same relationship to the new government as American colonists had been with Britain. Resistance against the Whiskey Tax was therefore just and legal.13


While Republicans sympathized with the grievances of the Whiskey Rebellion and opposed Hamilton's economic program, they rejected the idea that the people might assemble in arms spontaneously outside of their role as part of a well-regulated militia under state authority. Others not quite willing to sanction armed resistance were willing to contemplate a different form of passive resistance. Implicit in the idea of the militia was the idea that citizen soldiers were not passive tools of government, but retained a right to refuse to muster and thereby exercise a form of passive veto on government policy. Although this theory had never been fully theorized, it enjoyed broader popular support than the radical ideology of the Whiskey Rebels. Pennsylvania's Governor Thomas Mifflin believed that Pennsylvanians would act "as Freemen," which meant that "they would enquire into the cause and nature of the service proposed to them, and I believe that their alacrity in performing, as well as accepting it, would essentially depend on their opinion of its justice and necessity." This type of passive resistance was akin to the right of juries to refuse to convict a citizen under an unjust law, effectively nullifying the law at issue. Jury nullification reflected the strong tradition of popular constitutionalism in Anglo-American law. While these notions have atrophied in modern American law, they were a vital part of eighteenth-century law. In essence, local juries would act as a minilegislature or even a mini-constitutional convention, spontaneously evaluating the justice of a particular law or particular constitutional provision. During Shays's Rebellion the militia simply refused to muster and march against their fellow citizens. Militia nullification occupied a constitutional middle ground, somewhere between the categorical Federalist rejection of the idea of constitutional resistance and the Whiskey Rebels' assertion of a continuing right of revolution.14


Even among those who rejected the legitimacy of militia nullification there was some concern that this idea enjoyed considerable popular support and would present a serious obstacle to any effort by the federal government to call out the militia. Thus, Secretary of State Edmund Randolph was deeply worried that using force to crush the rebellion might trigger resistance to government action, either active or passive. After noting that "a radical and universal dissatisfaction with the excise pervades the four transmontane counties of Pennsylvania," Randolph remarked, "Several counties of Virginia, having a strong militia, participate in these feelings." Randolph echoed the concerns voiced by Mifflin, noting that not only was it possible that Pennsylvania's militia might refuse to respond to the governor's request, but also that "if the militia of other States are to be called forth, it is not a decided, thing that many of them may not refuse." Furthermore, the Whiskey Rebels and Pennsylvania militia might find common cause if confronted by an invading force of militia drawn from neighboring states. Either type of resistance to federal authority would precipitate a major constitutional crisis. Randolph was especially worried about the potential consequences of a civil war for the South. "There is another enemy in the heart of the Southern States," Randolph reminded Washington, "who would not sleep with such an opportunity of advantage." As had been true during the debate over ratification of the Constitution, the problem of slave rebellion was never far from the minds of leading southern politicians. Randolph's warnings demonstrate the tenuous nature of federal control over the militia in the years immediately after the adoption of the Constitution and the unresolved nature of American thinking about the constitutional function of the militia as a possible check on federal tyranny. Washington ultimately rejected Randolph's more cautious approach, siding with Hamilton s preference for a firm display of force. Randolph's dire prognostications about the militia refusing to muster proved unfounded, and the nation thus averted a major constitutional crisis.15


The musings and reservations expressed by Mifflin and Randolph demonstrate the fluidity of American constitutional thought in the years immediately following ratification about the constitutional function of the militia. Questions about the limits of resistance within the new legal system created by the Constitution had not yet been worked out. In his initial response to Washington, Mifflin conceded that members of the militia enjoyed considerable independence and would deliberate on the legality and justice of a summons to arms. Yet, when units of the militia failed to heed a call to muster and prepare to march against the insurgents, Mifflin was mortified. The governor soon retreated from his earlier recognition of some measure of autonomy among individual units of the militia. Within six weeks of expressing some doubts to Washington in private, Mifflin stood before the militia of Lancaster, Pennsylvania, and delivered a rousing call to arms to support the president. The shift in tone and attitude toward the role of the militia was profound. Abandoning even a vague hint that a right of militia nullification existed, Mifflin now argued that militiamen were legally and duty bound to follow orders, even if members harbored personal reservations about the government's policies. Mifflin's views now appeared almost indistinguishable from those of Hamilton. The only constitutionally legitimate response for unjust laws was for them to be "amended if they are imperfect, or they may be repealed if they are pernicious." The notion of some type of popular nullification was no longer viable in Mifflin's view. "The oath of affirmation of every public officer, and the duty of every private citizen" required that laws legally enacted "cannot be disobeyed, or obstructed, or resisted."16


Government forces easily crushed the rebellion. The trial of the leaders of the rebellion provided the government with another opportunity to assert its authority and firmly squash the notion that the Constitution had somehow incorporated a right of revolution into American law. Two of the Whiskey Rebels were indicted for treason. Neither of the defendants claimed a constitutional right of revolution, nor did they invoke their Second Amendment rights to keep and bear arms. Instead they readily conceded that their actions left them open to prosecution for rioting. Having conceded this fact, however, they strenuously denied that their actions met the Constitution s narrow definition of treason, which required proof of treasonous intent. Although the court did convict them, Washington was not eager to create any martyrs and quickly pardoned them.


The triumph of the forces of order over the Whiskey Rebels occasioned an outpouring of public sentiments in favor of the government's decision to use force to put down the rebellion. Federalists found a particularly sympathetic audience among many of the nations clergy, who heeded Washington's call for a national day of thanksgiving to commemorate the suppression of the rebellion. Ministers chose to "commemorate the blessings of our new government, now more firmly established by the suppression of a late unnatural, ill-advised insurrection." The defeat of the rebels was cast as a blow to anarchy and a triumph for "liberty with order." Samuel Kendal, a minister from Massachusetts, reminded his parishioners that 


there cannot exist any reason, or cause, which will justify the rising of a part of the people in arms against a government, like our federal government, which is supported by the will of the majority, and may at any time be altered by the same will; especially as there are constitutional means for the redress of any grievances, resulting from its administration.


Other sermons denounced events in Western Pennsylvania as "commotions" and compared the rebels to Shays and other fomenters of "anarchy and disorganization." The rebels' actions were counter-posed to the "patriotick militia" that crushed the rebellion. Once again, supporters of ordered liberty attacked the notion that Americans were entitled to a constitutional right of revolution against their government. Similar sentiments were expressed in the popular press. As one writer noted, "The late insurrection in the western counties and the alacrity of the militia, in rising for its suppression, demonstrate the propriety of a free people keeping arms in their own hands." The right to keep and bear arms and participate in the militia was intended to provide the people with the means to put down rebellions, not foment them.17


While the defeat of the Whiskey Rebels was certainly a setback for the opponents of the Federalist agenda, the states' rights conception of the militia and the radical localist view had not been extirpated from American constitutionalism. The ideas' that led citizens to assemble in arms in Braddock's Field, and assert a right to challenge federal authority, continued to exert a strong appeal to many opposed to the Federalists' centralizing agenda, particularly in the volatile backcountry The notion that the states might use their militia to interpose between the federal government and its citizens also continued to attract adherents within the ranks of Republicans. Whether framed as a direct challenge to federal power or conceptualized as a veto, the notion that the militia might actively or passively protest unjust federal policies remained a latent force to be reckoned with in American constitutionalism.18


VOLUNTEERS AND STREET FIGHTING MEN


The years following the Whiskey Rebellion did not usher in an era of political good feelings. Indeed, political tempers and partisan fervor only intensified after the uprising. Political divisions in America were exacerbated by the polarization of European politics after the French Revolution. Federalists rallied to the side of Britain, while Republicans embraced the cause of the French Revolution. British order and French liberty represented the twin lodestars of American politics. Quite apart from their roles as political symbols, support for Britain and France had important economic consequences. Unfortunately for Americans, hostilities between the two European powers erupted into armed conflict. It became increasingly difficult for America to avoid entanglements in European affairs, particularly given Americans' desire to trade with both Britain and France. By 1797 the simmering conflict with France over America's assertion of neutrality had led to a marked deterioration in diplomatic relations between the two nations; naval skirmishes between the two escalated into an undeclared quasi war. Americans, Federalists feared, were living in a dangerous time with enemies everywhere. Given the strong French sympathies of Republicans, Federalists also worried about the dangers of domestic subversion.19


Washington s successor, John Adams, resisted the most ambitious Federalist calls for a larger standing army and chose to concentrate his attention on building America's navy and creating the U.S. Marine Corps. Other Federalists wished to pursue a more aggressive policy. Hamilton proposed the creation of a provisional army of twenty thousand men who could be enlisted when the president judged it necessary. The president would also be allowed to accept volunteer companies, which were generally composed of wealthy Federalists, into the nation s military forces. Republicans countered with a proposal to mobilize eighty thousand militiamen to meet any military threat that might arise.20


The Federalist proposal to expand the nations army revived an issue that had been vigorously debated since the founding of the nation. Republicans opposed efforts to create a large army, clinging to the traditional Whig ideal that viewed standing armies as a threat to liberty. Federalists disparaged the performance of the militia on the battlefield and argued that a professional force was needed to meet the threat posed by the French. Quite apart from their general lack of faith in the militia, Federalists questioned whether. or not there were enough arms in the hands of the militia to make it an effective force. Republicans disputed the claim that America was insufficiently armed, arguing that there were enough weapons in state arsenals to outfit individuals unable to provide their own weapons. In addition to these points of disagreement, Republicans argued that giving the president power to raise a provisional army effectively undermined the constitutional separation of powers that gave Congress the legislative authority to organize the armed forces. The proposal to use volunteers struck Republicans as a particularly ominous development. Albert Gallatin, one of the most articulate spokesmen for the Republican opposition, attacked the plan for violating the Constitution, which recognized only two types of troops: army and militia. This type of select militia was especially dangerous since these units would be drawn from a particular class, the wealthy, and might easily become a tool of Federalist policy. Federalists took umbrage at the suggestion that troops under presidential control might somehow threaten the liberty of the nation. The only people who had reason to fear the provisional army and volunteers were the "turbulent and seditious" and "insurgents," they argued. The charge that they were enemies of government in turn angered Republicans, who denied that any group in America was bent on the kinds of lawlessness Federalists described.21 


During this wide-ranging debate over military policy, the meaning of the Second Amendment and its relevance to the constitutional function of the militia came up only once in a brief aside by Gallatin. The militia, Gallatin argued, included all citizens capable of bearing arms. "Whether a man be rich or poor, provided he has a common interest in the welfare of the community, he had an equal reliance upon him. And this is a constitutional idea; for the Constitution says, 'the rights of the people to bear arms shall not be questioned/ " A universal militia in which citizens bore arms would provide the states with a vital check on despotism. The Federalists' volunteer militia, by contrast, was intended to create an armed faction that would effectively undermine this constitutional check on federal power.22


Political tensions only intensified as the quasi war dragged on. Federalists rallied around John Adams's presidency and attacked French treachery on the high seas. Suspicion of France was exacerbated by the XYZ Affair, a notorious and widely reported attempt on the part of French diplomats to solicit a bribe from America's envoys in France. Although the incident was an embarrassment for Republicans, they continued to protest the Anglo-monarchical tendencies of their opponents and tried to remain as supportive of France as possible under the circumstances.23


While America and France were engaged in a quasi war at sea, Federalists and Republicans were engaged in a different sort of battle in the nation's newspapers and in some cases in the streets of America's cities and towns. Philadelphia, the nation s capital, was bitterly divided. One newspaper reported, "The streets of Philadelphia were filled with crowds of people, who wanted nothing but the firing of the first musket to precipitate Pennsylvania, and perhaps the continent, into the horrors of civil war." Thomas Jefferson recalled an incident when a group of Federalists wearing the black cockade encountered Republicans sporting the French tricolored cockade. A riot ensued between the two groups. "The city was so filled with confusion," Jefferson recollected, "that it was dangerous going out." Recognizing that politics rendered the streets dangerous, Republicans urged their supporters to form their own volunteer militias. "As men intent upon hostility have associated themselves in military corps, it becomes your duty to associate likewise. Arm and organize yourself immediately —Make yourself acquainted with military discipline, be ready, and you will be at peace." In this tense political environment the greatest threat to individual safety was not crime, but political violence. The political animosities engendered by partisan politics reached such a fervid pitch that Governor Thomas Mifflin thought it prudent to have cavalry and militia patrol the streets of Philadelphia. President Adams felt sufficiently threatened to "order Chests of Arms from the War Office to be brought through the lanes and back doors" to his personal residence.24


The quasi war and partisan political violence spurred Federalists to enact a series of laws designed to strengthen the federal government's ability to respond to threats from domestic and foreign radicals. Immigration was one area Federalists viewed as a potential source for radical infiltration. Three Alien Acts were passed to restrict immigration into the United States and place those already resident in America under greater scrutiny To deal with the danger of domestic threats to public order, Federalists passed the Sedition Act. This act created a federal law of seditious libel and provided stiff punishments for those convicted of criticizing the government.25


One of the most dramatic protests against the Alien Act occurred in Philadelphia at St. Mary's Catholic Church in February 1799. William Duane, editor of the antiadministration Philadelphia Aurora; Dr. James Reynolds; and two resident aliens set out to collect signatures on a petition against the Alien Acts. The petitioners posted notices on the gates leading into the churchyard and waited for congregants to leave the church. Angered by this profane and "seditious meeting" on church property irate Federalists exiting the church fell upon Duane, Reynolds, and their companions. A small riot ensued, and Reynolds pulled a pistol from his coat and brandished it to fend off the angry mob. The crowd overpowered Reynolds, knocked him to the ground, and disarmed him. The four men were charged with riot, and Reynolds faced an additional charge of assault with a deadly weapon.26


The trial provides a remarkable window into contemporary attitudes about constitutional liberty and the right of individual self-defense. The meaning of the right of assembly and the scope of the right of individual self-defense were discussed at great length during the trial. The involvement of Duane, a leading publisher and prominent Republican, meant that the case attracted some of the leading legal minds of the day and drew considerable attention in the press. Indeed, the case was significant enough to justify publishing the entire trial transcript in pamphlet form. The arguments used by the defense and the prosecution provide one of the clearest expressions of how lawyers conceptualized the right to use firearms for self-defense in the generation immediately following the adoption of the Second Amendment and the first state constitutional provisions on arms bearing.


Although occasioned by a protest against the Alien Acts passed by Congress, the criminal charges against the defendants were filed in state court for violations of Pennsylvania law. Accordingly, the arguments in the case focused on issues of state constitutional law and common law. Speaking on behalf of the defendants, noted attorney Alexander Dallas expressed his dismay that anyone could find fault with his clients' actions. "To denounce as riotous a constitutional right, the obtaining of signatures to a respectful memorial addressed to the proper organ of government" was astonishing in a republic. The right to petition to seek redress of grievances was explicitly protected by the Pennsylvania Constitution.27


Although the attorney general conceded that assembly was a basic constitutional right explicitly protected by the Pennsylvania Constitution, and a bedrock principle of American law, he took exception to two of the defense's claims. First, the right was not, strictly speaking, an individual right, but rather was one associated with citizenship. The resident aliens who assisted Duane could not claim a constitutional right of assembly. Second, government might still legitimately regulate this right by imposing certain reasonable Emits on the time, place, and manner in which it might be exercised.28


Reynolds's use of a firearm posed a different set of legal issues. While the defense and prosecution had different ideas about the constitutional right of assembly neither side believed that the use of a gun for personal self-defense had any connection to the constitutional right to bear arms protected by the Pennsylvania Constitution. The argument over the right to use firearms touched no constitutional question but did raise an issue under common law. The prosecution argued that Reynolds's decision to arm himself was not justified by traditional common-law principle and provided evidence of his criminal intent. Eyewitness testimony produced by the prosecution asserted that Reynolds acted not in self-defense, but merely to defend himself against insult and minor injury. While self-defense was a well-accepted principle under common law, defending ones' honor against insult was not. Similarly, the right to stand one's ground and fend off attackers was not protected by common law. Indeed, even if Reynolds had feared for his life, his decision to stand his ground rather than flee meant he had forfeited the right of self-defense guaranteed by the common law. The prosecution asserted an extremely limited Blackstonian conception of self-defense, which required a "retreat to the wall" before resorting to deadly force.29


The defense agreed that the constitutional right to bear arms was not at issue in the case. Instead, they focused on the meaning of the common law right of self-defense. Dallas made a simple argument: "There is no law in Pennsylvania to prevent it; every man has a right to carry arms who apprehends himself to be in danger." In the absence of any law against carrying a firearm, the prosecution could not infer any criminal intent from Reynolds's decision to arm himself Given the depth of political animosities in Philadelphia, Reynolds's actions were not indicative of criminal intent, but simple prudence. "Party spirit" had reached such a fervid pitch and personal animosities grown so intense that Reynolds had been obliged to arm himself as a means of self-protection. Interestingly, there was widespread agreement that Reynolds's choice of weapon, a pistol, was unwise. Given the likelihood of a pistol's misfiring, a dirk or sword cane were better choices.30


The Reynolds case provides a rare and remarkable glimpse into how leading lawyers of the early republic viewed carrying firearms outside of the context of bearing them as part of a well-regulated militia. The distinction between a constitutional right to bear arms and a common-law right to keep or carry arms for self-defense was accepted by both sides. Although the defense attorneys had readily resorted to constitutional arguments to support their clients' right to assemble, they relied on common-law doctrine to sanction the use of a pistol for self-defense.


The fact that the prosecution and defense viewed the scope of the right of individual self-defense in such radically different terms demonstrates the uncertain state of the law of self-defense in the new republic. In the Reynolds case, a more traditional and limited Blackstonian conception of self-defense was pitted against a newer, more aggressive notion of standing one's ground. One of the most intriguing arguments hinted at in the case dealt with a right to use force to defend one's honor, a conception that would come to play an even more crucial role in the evolution of American thinking about the right of self-defense in the coming decades. Although it is difficult to disentangle the case from the bitter political conflicts of the day the jury obviously found the defense's case more compelling. They acquitted the accused on all charges.31


TESTING THE CONSTITUTIONAL RIGHT OF RESISTANCE


Opposition to the Alien Acts was mild when compared to the scope of protests against the-Sedition Act. By criminalizing public criticism of the government, Federalists appeared to be striking at freedom itself. Newspapers teemed with denunciations of the legislation. Public meetings drew large crowds of protestors, petitions were collected, and liberty poles were raised in many cities and towns. America faced a full-blown constitutional crisis, one that forced Republicans to think hard about the option of constitutional resistance.


During the debate over the Constitution, Federalists had assured their opponents that there were ample protections for liberty built into the structure of the new federal system. Although they opposed the Anti-Federalists' states' rights conception of the Constitution, Federalists had been forced to concede that in the event of an unconstitutional usurpation of power by the federal government, states would rally to protect liberty. The exact mechanism by which the states would exercise this role had not been spelled out with any precision in 1788. Ten years later, the heirs to the Anti-Federalists, the Republicans, were faced with a serious constitutional problem: how could the states exercise this vital role as the guardians of liberty? Would the agents of this be the state judiciaries, the state legislatures, or the state militias? Republicans considered all of these possibilities in the course of their spirited opposition to the Sedition Act.


The initial goal of the opposition was the repeal of the law. This strategy foundered for want of political support in heavily Federalist areas of the nation such as New England. Opponents next looked to the courts. In theory juries might have protected those accused of seditions libel by refusing to convict them. Jury nullification of the Sedition Act was stymied by the Federalist-dominated judiciary, which refused to allow juries to exercise this function. When it became clear that ordinary political and legal means had failed, opposition thinkers began to theorize in a more systematic fashion how they might justify some type of constitutional resistance.32


In a letter to Thomas Jefferson, John Taylor, a leading southern voice within the Republican alliance, suggested that the states might exercise a check on the government. Taylor's states' rights constitutional theory was taken up and elaborated more fully in Jefferson's "Kentucky Resolutions" and James Madison's "Virginia Resolutions." Jefferson and Madison asserted that the protection of individual liberty depended on preserving the balance of power between the states and the federal government and that states might interpose between the federal government and individuals. The mechanism for enforcing this interposition was only vaguely outlined, and language of the two resolutions implied that moral suasion, not legal action or military force, was the appropriate means of accomplishing some type of nullification of unconstitutional laws.33


While most mainstream Republicans adhered to this peaceful defense of states' rights, the radical ideology that had inspired protests such as the Whiskey Rebels' produced a different response among local militia units and local communities scattered across the nation. The militia of Amelia County, Virginia, resolved "that any Act' violating the Constitution, is, we conceive a nullity." Moreover, it was "the duty of every citizen to oppose by all constitutional means every attempt to violate the Constitution." Citizens ought to refuse to "aid in carrying the said acts into effect." Although they were less bold, the Freemen of Rutland County, Vermont, declared a similar principle when they contrasted the willingness of a standing army to enforce acts contrary to the Constitution with the actions of a well-regulated and virtuous militia who would never feel compelled to enforce such acts. Similarly a Kentucky broadside issued by citizens from Lexington warned Federalists that free citizens would defend the Constitution "at the hazard of their lives and fortunes" against any enemy but would never support "acts that are unconstitutional." The explicit affirmations of the Amelia County militia and the veiled threats emanating from Kentucky and Vermont voiced a rough-hewn theory of constitutional resistance that relied on popular nullification of unjust laws. The militia was key to this function and would achieve its role by refusing to muster or carry out orders to enforce unconstitutional acts.34


The possibility, of some sort of armed clash between the state militias or local units and the federal government was taken very seriously by contemporaries. Nathaniel Pope, a Republican from Virginia, warned that efforts to enforce the Alien and Sedition Acts would "compel the people forcibly to resort to first revolutionary principles." Rather than embrace violence, Pope counseled opponents of the acts to employ a "mild and constitutional mode of obtaining a redress of our grievances." Despite the efforts of such moderate voices, Federalist newspapers reported rumors that a resort to arms might be made to prevent enforcement of the Alien and Sedition Acts. These reports were given additional credence because of the Virginia state legislature's unprecedented actions to reform the militia in the midst of the crisis. Legislators raised taxes by a staggering 25 percent, an enormous sum for a state that had previously protested loudly about excessive Federalist taxes. The Virginia plan for militia reform included ample funds for procuring additional arms and ammunition and an ambitious plan to create a new state armory. Did Virginians really contemplate using the militia as the final check on federal tyranny in 1799? It is difficult to be certain, but Federalists certainly felt that such a threat was credible. Virginians may well have been engaged in some dramatic saber rattling, using a long-overdue plan to overhaul the militia for maximum political effect. Still, the effect of such posturing on their opponents is undeniable.35


Federalists not only rejected armed resistance, but they attacked popular nullification and the doctrine of state nullification as well. "The Address of the Minority of the Virginia Legislature," a response to Madison's and Jefferson's theory of nullification, declared that it "was not only within the "legitimate powers of the government" to enact laws "punishing open resistance," but that government might legitimately act preemptively to prohibit actions that might constitute "the germ from which resistance springs." The official response of the stated of Rhode Island to the Virginia and Kentucky Resolutions was no less hostile. The logic of Virginia and Kentucky led to "civil discord" and would inevitably result in "each state having in that case, no resort for vindicating its own opinion, but to the strength of its own arm."36


FRIES'S REBELLION, THE REVOLUTION OF

1800, AND THE RIGHT OF ARMED

RESISTANCE


The quasi war with France fueled a military buildup, and to fund this effort Federalists passed a series of taxes on houses, land, and slaves. Opposition to the new taxes turned violent in the German communities of southeastern Pennsylvania. The tax on land seemed particularly intrusive since it required assessors to enter citizens' homes to complete their evaluations. The assessors were harassed and threatened. As had been true during Shays's and the Whiskey Rebellion, opposition was organized through local units of the militia. When a federal warrant was issued for the protestors and arrests made, the local militia sprang into action. Three local companies of armed citizens mustered and marched to the jail to release the prisoners. Once again the radical potential of the militia had been unleashed in response to government actions deemed despotic by some Americans. President Adams acted decisively and called out the Pennsylvania state militia to put down the rebellion. As had been true during the Whiskey Rebellion, the well-regulated militia controlled by the federal government was used against local units of the militia. The leader of the uprising, Jacob Fries, -was apprehended and charged with treason.37


As had been true during the Whiskey Rebellion, the rebels had turned to the forms and symbols of the militia to frame their protests. The insurgents, one witness testified, "damned the house-tax" and "the alien and sedition law, and finally all the laws: the government and all the laws the present Congress made. They damned the Constitution also. They did not mention what constitution, whether of this state or of the United States." Rebels fell back on a potent populist constitutional tradition that looked to local community institutions. Thus, one federal marshal recounted how an insurgent described both the Alien Act and the house tax as unconstitutional and railed against the practice of bringing violators to Philadelphia for trial. "They had no objection," he recalled, against being "tried in their own courts, and by their own people." The defense of local juries was consistent with the decision to use the local militia as a means of nullifying a law deemed obnoxious and unconstitutional. Some rebels invoked the legacy of 1776 while others cited the more recent example of the French Revolution. At one meeting, a witness testified that he saw about a dozen armed men in uniform marching in military fashion with a flag with the word "liberty" written on it. After the law was explained to the group, one man exclaimed, "We don't "want any of your damned laws, we have laws of our own." To drive home his point, the rebel "shook the muzzle of his musket in my face, saying 'this is our law, and we will let you know it.'" When rebels denounced one government official as a Tory, the federal marshal replied that such an epithet "could not apply to me; that I had a share in the Revolution: and I was as fond of liberty as any of them." When the insurgents "huzzaed for liberty; I told them that I should join them in that, if they would huzza for liberty of the right kind; but this was licentious liberty." The invocation of liberty by the rebels underscored the disjunction between these two opposing visions of constitutional law.38


The prosecution in Fries's case followed the model set out in the trial of the Whiskey Rebels. The government argued that the Constitution defined treason as "levying war against the United States, and aiding the enemies of the United States." U.S. Attorney William Rawle insisted that treason did not require a full-scale rebellion, but could consist of assembling "with force of arms, or by numbers sufficient for that purpose, to cause an impression of terror" intended to prevent the exercise of federal law. Rawle drew a distinction between acts aimed at a particular individual in his private capacity, which would be punishable as riot, and those directed at public officials and intended to promote a general resistance to the laws of the United States, which would be treasonous.39


Alexander Dallas, who had so ably defended Duane and Reynolds against the charges of riot and assault, represented Fries in his trial. This time Dallas was presented with a much more difficult task. His strategy was similar to the one employed in the trial of the Whiskey Rebels. While conceding that the rebels had engaged in criminal activity, Dallas insisted that there was an important legal distinction between rioting and rebelling. The law recognized a wide gulf between acts of "riot and folly" and those of "deliberate treason." Despite the defense's best efforts to persuade the jury that Fries was a rioter and not a rebel, the jury convicted Fries of treason and sentenced him to death. Eager to avoid creating a Republican martyr, John Adams pardoned Fries and the other insurgents.40


Federalists not only believed there was no right of revolution protected by the Constitution, but they approached the common-law right to carry arms in narrow terms as well. Thus, in his charge to the jury during Fries's trial, Judge Richard Peters made it clear that federal marshals had been justified in disarming citizens who were planning to join the insurgents. Indeed, Peters went on to suggest, "a constable has a right to restrain and confine, under strong circumstances of suspicion, persons whose conduct or appearance evidence an intention to commit illegal and violent acts." Guns were clearly not like words; they were subject to some forms of prior restraint. Even the detested Sedition Act did not allow government to place prior restraints on publications.41


Although Republicans opposed the Federalist decision to call out the militia to put down the rebellion, they did not sanction the protesters' use of violence. Both Federalist and Republican elites decisively rejected the notion that individuals or local communities might exercise a right of armed resistance. The gulf separating popular constitutional culture, which continued to accept the idea of local nullification and even armed resistance, and elite ideas about constitutional resistance remained wide. Fries's conviction was another serious setback for the populist vision of the militia. Despite this defeat, this ideology continued as a powerful underground current in American culture. Two powerful forces in American life sustained it: the strong centripetal pull of localism and the emotionally resonant language of American revolutionary rhetoric.42


While Republican elites may have abandoned the notion of an individual or communal right of armed resistance, a state's prerogative to exercise such a right was still very much alive in Republican thought. In its least controversial form, state governors could simply refuse to call up their militia to enforce federal policy. The more radical notion that states might actually use their militias against the federal government under extraordinary circumstances, while still controversial, gained additional support when Republicans faced another constitutional crisis and another example of Federalist despotism, the electoral college deadlock of 1800.43


This crisis was a dramatic example of an unanticipated flaw in the Constitution s design. No provision had been made to distinguish between votes cast for president and vice president in the Electoral College. In 1800, Federalists had wisely arranged to divert one vote from vice presidential candidate Thomas Pinckney to assure presidential candidate John Adams more votes than his running mate. Republicans, fearful of possible defections that might cost them the election, made no such plans. When the final votes were counted, Thomas Jefferson, the candidate for president, received the same number of votes as his running mate, Aaron Burr. The Constitution specified that in cases of a tie the House of Representatives would decide the election. Although the choice was now between two Republican candidates, some Federalists believed anyone was preferable to Jefferson and threw their support to Burr, who became the Federalist favorite. Behind the scenes, both sides engaged in a frenzy of activity to resolve the electoral dispute peacefully. Each side feared that the other might use force to steal the election. The Federalist Gazette of the United States posed the question bluntly: Were Jefferson and his supporters "ripe for civil war, and ready to imbrue their hands in kindred blood?" Hugh Henry Brackenridge wrote to Jefferson to voice his concern that Hamilton would act the part of Oliver Cromwell, backed by his own "New Model Army" composed of Federalist volunteers. Were Federalists to draw "the bayonet," Brackenridge was confident they would encounter a Republican resistance distinguished by its "valor, virtue, and numbers." In any such contest, he concluded, the Federalists would certainly be vanquished.44


The crisis once again forced Americans to ponder the role of the militia and the scope of the right of armed resistance under the Constitution. One of the most remarkable documents produced during this tense situation was drafted by Albert Gallatin, one of Jefferson s leading advisors, who outlined the various options available to Republicans should Federalists block Jefferson s election. The larger question Gallatin posed was simple: "If they shall usurp, for unconstitutional assumption is usurpation, are we to submit or not?" In Gallatin's view, "usurpation must be resisted by freemen whenever they have the power of resisting." If Federalists tried to steal the election from Jefferson, the normal constitutional mechanisms for protecting liberty would have been cast aside and Americans would be thrust into a revolutionary situation akin to that of 1776. The difficult issue for Gallatin was not the legitimacy of resistance, but the correct "mode of resisting."45


Gallatin took great pains to frame a response that sought to avoid anarchy and utilize those structures of constitutional government that remained uncorrupted. The key to preventing anarchy was to block "every partial insurrection, or even individual acts of resistance." The only legitimate mode for collecting the voice of the people was through individual state governments. Resistance was acceptable when the 'laws of the particular states" sanctioned it. Gallatin discussed the notion of the individual state militias refusing to obey the orders of any usurper. The militias Were still creatures of the states, and although they had supported the government during the Whiskey Rebellion and Fries's Insurrection, they might legitimately decide to oppose the federal government at this juncture.46


To many, the prospect of civil war appeared all too real. Governor Thomas McKean of Pennsylvania and Governor James Monroe of Virginia each prepared to ready their states' militia in the event that Federalists attempted to seize power. Samuel Tyler informed Monroe that Pennsylvania "had 22 thousand prepared to take up arms in the event of extremities." Rumors of the alliance between Pennsylvania and Virginia leaked to the press. One Federalist newspaper boasted that the militias of Massachusetts, New Hampshire, and Connecticut were "united almost to a man, with half the number of at least. the citizens of eleven other states ranged under the federal banner in support of the Constitution." Against such numbers, "what could Pennsylvania do aided by Virginia"? The author of this essay went on to deride the quality of the Virginia militia, describing them as "untrained and farcically performing the manual exercise with corn stalks instead of muskets." Monroe took several extraordinary steps to ready his state for a possible conflict. Fearing that arms stored in a federal arsenal at New London, Virginia, might be used against the state government by Federalists, Monroe set in play a plan to transfer the munitions to the state militia. He dispatched a loyal officer to the arsenal to determine the state of the weapons. The arms, many of which had been captured during the Revolution and had recently been refurbished, included "4000 excellent muskets and bayonets with about 3000 cartridge boxes," powder, ball, and "two good brass field pieces with their carriages." Using the fear of a possible slave insurrection as his justification, Monroe ordered a detachment of state militia to guard the weapons and ammunition.47


The willingness of Governors McKean and Monroe to mobilize their militias may have helped resolve the crisis by convincing Federalists to accept Jefferson s claim on the presidency. As Jefferson observed, "We thought it best to declare openly and firmly one & all, that" in the event of an act of usurpation, "the middle states would arm, & that no such usurpation, even for a single day, should be submitted to." The effect of such resolve was unmistakable in Jefferson s view: "This first shook them; and they were completely alarmed at the resource for which we declared." The actions of McKean, Monroe, and Jefferson took the states' rights theory of the militia, first articulated by Anti-Federalists a decade earlier, and made it orthodoxy among Republicans.48


AN AMERICAN BLACKSTONE PONDERS THE SECOND AMENDMENT


In his law lectures at William and Mary, delivered shortly after the adoption of the Bill of Rights, St. George Tucker had defended the Second Amendment as an essential part of the structure of checks and balances that protected the rights of the states and the integrity of the federal system. The Second Amendment, in his view, had been included so that the states might have the awesome power of resisting federal tyranny by force of arms. Tucker revisited the role of the Second Amendment in American constitutionalism in his multi-volume study of Sir William Blackstone, published three years after the peaceful resolution of the electoral crisis of 1800.49


Tucker dealt with the Second Amendment in several places in his monumental treatise. His first discussion was coupled with a denunciation of Federalist use of volunteer militias during the quasi war with France (1797-1800). In essence, Federalists had created a select militia that was neither representative of the people nor properly controlled by the states. Rather than serve as a check on federal power, this new institution was likely to become an engine of federal despotism.50


Tucker reiterated his earlier view that the Second Amendment and the Virginia Declaration of Rights each had to be read in conjunction with the Constitution's discussion of the militia in Article 1, Section 8 of the Constitution. The adoption of the Second Amendment was a direct response to Anti-Federalist concerns over the future of the state militias. Tucker interpreted the amendment as a strong affirmation of states' rights, one that dispelled "all room for doubt, or uneasiness upon the subject."51


One of the most novel features of Tucker's Second Amendment analysis was his belief that the right to bear arms in a well-regulated militia was judicially enforceable by federal courts. This issue provided an opportunity to illustrate the larger danger posed by Federalist constitutional theory and defend the  concept of federal judicial review. The issue that concerned Tucker was how to respond when "the legislature should pass a law dangerous to the liberties of the people." In Tucker's view, 


The judiciary, therefore, is that department of government to whom the protection of the rights of the individual is by the constitution especially confided, interposing its shield between him and the sword of the usurped authority.


Congressional disarmament provided an excellent illustration of this point:


If for example congress were to pass a law prohibiting any person from bearing arms, as a means of preventing insurrections, the judicial courts, under the construction of the words necessary and proper, here contended for, would be able to pronounce decidedly upon the constitutionality of these means.


The underlying constitutional theory that made such developments possible was the Federalist theory of loose construction of the Constitution. "If congress may use any means, which they choose to adopt" to achieve their goal of preventing insurrections, Tucker complained, they could easily transform "the provision in the constitution which secures to the people the right of bearing arms" into "a mere nullity."52


Tucker's fears about potential federal disarmament of the militia were not entirely groundless. Federalists had already created volunteer militias and had hinted that some sort of preemptive legislation aimed at preventing insurrections might be necessary Although Federalist use of the doctrine of seditious libel had stopped short of enacting prior restraints on publication, Tucker feared that Federalists would have had few constitutional scruples about using federal law to prevent citizens from bearing arms. If Federalists tried to enact similar restrictions on the right to bear arms, Tucker believed that it would be appropriate for federal courts to strike down such laws as unconstitutional. Tucker s treatise was published after Jefferson was safely ensconced in the presidency, and his discussion of constitutional resistance was less militant than his musings on the subject a decade earlier. Tucker did not disown his earlier avowal of a states' rights view of the Second Amendment, hut his later elaboration of the civic conception of bearing arms and bold claim that federal courts could protect this right broadened his understanding of the potential role of the Second Amendment as a vital part of the federal system.53


THE RIGHT TO BEAK ARMS AT THE ONSET OF THE NINETEENTH CENTURY


In a Fourth of July oration delivered two years after the publication of Tucker's Commentaries, John Danforth Dunbar reiterated the importance of the dominant civic conception of the Second Amendment in succinct terms. He reminded his fellow citizens that "the patriots of '75 considered the right to keep and bear arms as one of our dearest privileges." The roots of the Second Amendment, according to Dunbar, were to be found in the patriots' fear of standing armies and their belief in the superiority of the militia. Dunbar wove together a patriotic recitation of the Revolutionary era's conception of the militia and the right to bear arms with a cautionary tale about recent threats to this ideal during the Federalist era. During their decade-long domination of the national government, the Federalists had advanced a military program that included plans for a large standing army and a volunteer select militia. Although this agenda had not been fully realized, Americans could ill afford to relax their guard. The defeat of Federalists in 1800 and the election of Jefferson to the presidency had not banished Federalist ideas entirely. Still, Jeffersonians could take pride in the fact that the "militia" continued to be a scourge to "tyrants at home and invaders from abroad." In Dunbar's view, the right to keep and bear arms as part of a well-regulated militia was a foundational principle of American constitutionalism. Samuel Dana articulated the same civic conception of arms bearing in 'An Address on the Importance of a Well Regulated Militia." Dana's civic discourse was delivered in Concord, Massachusetts, a location closely associated with the minuteman ideal. After noting that the federal constitution had given the responsibility of "organizing, arming, disciplining the Militia" to the national legislature, Dana reminded his audience that "the right of bearing arms for the common defense, is recognized among our unalterable laws." Picking up on a theme sounded by Samuel Mitchill in an oration delivered less than a decade before, Dana noted that to achieve this ideal "these arms must not be suffered to rust in our houses." The notion that the right to bear arms for the common defense posed a burden and an awesome responsibility on citizens continued to define public discourse on the Second Amendment.54


Although the civic conception of the right to bear arms continued to enjoy widespread support, by the end of the era of Federalist domination, the states' rights conception of the Second Amendment had gained a strong foothold. Throughout the 1790s, Federalists had consistently sought greater federal control of the militia and denounced the idea of a constitutional right of resistance, either passive or armed. Republicans had defended state control of the militia and were more receptive to the idea of militia nullification or, in extreme cases, state resistance to federal tyranny. The notion of the militia exercising a passive check on the federal government enjoyed broader support than the more assertive view that the states might actually take up arms against the government in defense of liberty. While the 1790s helped elevate to prominence the states' rights view of the Second Amendment, the defeat of the Whiskey Rebels and Fries's Rebels was another setback to those Americans who believed in a continuing right of revolution and clung to their faith that people assembled in arms, organized as local militia units, might defend their communities against state and federal tyranny. Leading Republicans distanced themselves from this radical formulation of the militia's role and clung to the idea of a well-regulated militia under state control. Despite the outcomes of the Whiskey Rebellion and Fries's Rebellion, this popular constitutional tradition remained latent within American culture.


The publication of Tucker's work did not end the debate over the meaning of the right to bear arms or the constitutional role of the militia. Surprisingly, the states' rights view of the militia would soon be embraced by Federalists eager to oppose the policies of Thomas Jefferson and his successor, James Madison. Although the political animosities of the 1790s led some to reconsider the meaning of the right of self-defense, the new theory enunciated by the defense in the Reynolds case would continue to gain ground as some Americans began to doubt the more limited Blackstonian conception of the right of self-defense. Ultimately, this critique would lead some to fuse the common-law right of bearing a gun in self-defense and the constitutional right to bear arms into a single principle.

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TO  BE  CONTINUED