A  WELL  REGULATED  MILITIA  -  The  Founding  Fathers  and  Gun  Control  in  America


CHAPTER FOUR

Militias, Mobs, and Murder

TESTING THE LIMITS OF THE RIGHT TO BEAR ARMS

Reflecting on the state of politics in his own state of Massachusetts after Jefferson's election to the presidency, John Adams wryly noted that "we in this commonwealth are making great advances, if not in the perfectibility of human nature, yet in the great arts of lying and libeling and the other arts which grow out of them, such as wielding the cudgel and pistol." The ultimately peaceful transfer of power from the Federalists to the Republicans had done little in Adams's view to dampen partisan rancor. The best-known example of political violence in the Jeffersonian era was the fatal duel fought between the Federalist Alexander Hamilton and his political opponent Aaron Burr. While duels, including the one that took Hamilton's life, were among the most formal and stylized type of political violence in Jeffersonian America, they were hardly the only occasions when partisan rivalries or animosities led to violence, or even death. Heightened political tensions, as Adams observed, led many to arm themselves as a precaution against political assault. Indeed, the most notorious murder case of the new republic was occasioned by a political feud that turned deadly. The murder of the Jeffersonian Charles Austin by Federalist Thomas Selfridge shocked the nation and altered the trational common-law understanding of the right of self-defense.1


The Jeffersonian era not only helped transform the meaning of the law of self-defense, but it also tested the limits of the revived states' rights theory of the Second Amendment that had helped secure Jefferson the presidency. In 1800 Virginia and Pennsylvania had each come dangerously close to mobilizing their militias and using them against the federal government. Ironically, Jefferson s successor in the presidency, James Madison, another supporter of states' rights, would have this ideology turned against him on two separate occasions, by Federalists opposed to his policies.


The Jeffersonian era also produced the first Supreme Court decision in the new nation s history to cite the Second Amendment. It was not an auspicious debut for this provision of the Bill of Rights before the high court. The issue was not only consigned to a minor aside in the decision, but Justice Joseph Story also misidentified it as the Fifth Amendment, even as he disdainfully dismissed the states' rights theory of the amendment. Story's-curt rejection did little to dampen the ardor of those who continued to believe that the Second Amendment provided the states with a means to exercise the ultimate check against federal tyranny The debate over the meaning of the right to bear arms and its role in American constitutionalism was only just beginning.


POLITICAL MURDER


A scant two years after Hamilton and Burr had faced one another on the field of honor, partisan political acrimony resulted in yet another fatality that galvanized the nation's attention. The site for this tragedy was not an isolated field in New Jersey, but the crowded streets of Boston. The victim, Charles Austin, a Harvard student and the son of Benjamin Austin, one New England's most prominent Jeffersonians, was shot down in cold blood in front of a crowd of onlookers. Thomas Selfridge, the man charged with Austin's murder, was one of the city's most respected lawyers and a leading light of New England's Federalist establishment.2


The deadly encounter between Austin and Selfridge was the culmination of a complex chain of events shaped by the bitter partisan rivalries that divided Boston in the Jeffersonian era. In this highly charged climate, revelry itself was not only highly political, but took on an added competitive edge as well. Jeffersonians and Federalists vied to hold the most lavish political celebrations. Benjamin Austin had organized a Fourth of July banquet intended to entertain his fellow Jeffersonian supporters and impress his enemies. To add an exotic element to the occasion, Austin had invited the Tunisian ambassador, who arrived in "his showy oriental costume" and brought with him "a number of his attendants in rich Turkish and Moorish dresses."3


The lure of good food and the exotic entourage attracted many who had not purchased tickets for the event. The gate-crashers consumed far more than the Republican committee had allocated for the cost of the event. The tavern owner demanded payment in full. Since the cost for the event ran well over the agreed-upon fee, Austin balked at paying the difference. The owner of the tavern sought the advice of a Federalist lawyer, Thomas Selfridge. When Austin learned that he would be sued for the difference, he denounced the suit as the work of party spite, instigated by the tavern's Federalist attorney. Selfridge, a respected member of the city's legal establishment, charged Austin with having "circulated an infamous falsehood concerning my professional conduct." The aggrieved lawyer demanded "the satisfaction due to a gentleman," With no apology forthcoming from Austin, Selfridge followed the rules established by the code of honor. Before meeting on the field of honor, an exchange in print was usually customary. Selfridge "posted" Benjamin Austin in the Boston Gazette, declaring him to be "A COWARD, A LIAR, and A SCOUNDREL." Austin posted his response in the Republican Independent Chronicle, asserting that he would not debase himself by responding directly to Selfridge's "insolent and false publication."


When the print exchange did not resolve the matter, the chances of some sort of violent encounter increased. Rumors circulated that Austin had recruited a "bully" to give Selfridge a sound thrashing. Determined to protect himself from attack or intimidation, Selfridge armed himself with two pistols. Even as Selfridge resolved to defend himself with deadly force, young Charles Austin fulminated at the assault on his father s honor and resolved to avenge the family name. Charles often carried a walking stick, but on the day that he encountered Selfridge in the streets of Boston he had equipped himself with a "stout hickory cane." When Austin confronted Selfridge and attempted to beat him with the cane, Selfridge drew his pistol and fatally wounded his attacker.4


The death of the young Charles Austin convulsed the city of Boston. Selfridge confessed that Austin's unfortunate death "has excised the prejudices, awakened the passions, and agitated the feelings of the community, in a manner which has neither precedent nor parallel." One observer noted in his diary that it was a "most interesting trial, it seems, to the whole Continent." The trial was widely reported in the contemporary press. One newspaper compared the significance of the event to the Boston Massacre and the duel between Hamilton and Burr. Public interest in the case prompted the Boston Gazette to observe that "the feelings of the public have been deeply agitated by this melancholy event, beyond what we recollect them to have been by any occurrence within the compass of some memory." Anticipating the public's interest in the case, the Gazette undertook to publish a pamphlet containing the proceedings of the trial. Believing that there would "be an immense demand for the volume," the publisher surmised that the central legal issue in the case, "the right of self defense with a mortal weapon," would be an issue of wide interest to the reading public.5


The repercussions of the case echoed well beyond Boston. Republicans denounced the assassination as a "Federalist murder." Selfridge was vilified in the Republican press, prompting his attorney to caution the jury in the case that "the democratic presses throughout the country have teemed with publications, fraught with appeals to the passions, and bitter invective against" his client. As one contemporary observer noted, "the great political parties in the State" were "arranged under their respective standards on the simple question of the guilt or innocence of an individual under criminal investigation."6


Attorney General James Sullivan argued the commonwealth's position, asserting that Selfridge had not been justified in arming himself and had a clear duty to retreat. There was an important difference between the situation one faced when confronted by an attacker "in the highway and an assault in a town." On a crowded city street where one might seek refuge or call on assistance, the right to arm oneself and use deadly weapons in self-defense was severely circumscribed. While the attorney general conceded that "there may be such a time in which a man may thus arm; but it could not be necessary at noon day, and when going on so public a place." Even if arming himself had been his only recourse, a view that the state rejected, then Selfridge should have not concealed his weapon. His decision to do so suggested that he was intent on playing the part of an assassin and was not simply an innocent citizen defending himself. For the prosecution, the case of Selfridge provided a clear example of the limited scope of the right to carry arms for personal protection. "All men are bound to surrender their natural rights upon entering into civil society, and the law become the guardians of the equal rights of all men." Selfridge had other options to save himself, and he had been legally bound to exhaust those before using deadly force.7


The issue of the right to bear arms was mentioned in passing by Selfridge's lawyer, who conceded that "every man has a right to possess military arms" and "to furnish his rooms with them." The case of Selfridge presented a different problem, however: the use of non-military weapons for individual self-defense. Rather than assert a constitutional claim that his client was simply exercising a right to bear arms in self-defense, Selfridge's attorney used the same two-prong strategy employed by lawyers in the Reynolds case less than a decade earlier. First, the defense contended that "there is no law written or unwritten, no part of the statute or common law of our country which denies to a man the right of possessing or wearing any kind of arms." Secondly, "in every free society a man is at liberty to do that which the law does not interdict, nor can the doing that which is not forbidden be imputed as a crime." Selfridge had not broken any law, and his decision to arm himself was not only entirely legal, it was also prudent.8


In the course of framing its arguments, the defense acknowledged that Selfridge may not have chosen his weapon wisely. Given the likely chance that a pistol might misfire, it was a notoriously poor choice for personal self-defense. Indeed, the unreliability of a handgun was used by the defense as further proof that Selfridge's actions were not criminal, but were both sensible and necessary. Given the chances of rnisfiring or not firing at all, Selfridge could simply not afford to fire a warning shot or aim to wound his attacker. An individual wielding a dirk, sword cane, or other edged weapon might have had the luxury of attempting to ward off an attacker by merely threatening to use the weapon or by delivering a nonlethal blow. Selfridge had no choice and had acted as any rational man would have if faced with a similar situation.9


The case turned on the meaning of the common-law right of self-defense. In a decision that proved to be extremely controversial, the court recast the traditional Blackstonian theory in a more expansive fashion. According to this new doctrine, one did not need to be in actual danger; one need only have had reasonable cause to fear for one's life to use deadly force in self-defense. This new standard, reasonable cause to fear for one's life, proved to be the most controversial legal issue in the case and had a profound impact on the subsequent development of the law of justifiable homicide.10


The Independent Chronicle, Benjamin Austin's paper, denounced the court's new standard. To allow an individual to respond with deadly force if he had a "reasonable ground for believing that the person slain had a felonious design against him'' imperiled every citizen and was, in the view of the Chronicle, "calculated to disturb, rather than promote the peace of society." By effectively lowering the threshold for using violence from an actual threat to a reasonable belief that such a threat existed, the judges risked turning "every trifling fracas" into a conflict that might "end in death."11


The use of a concealed weapon also prompted extensive comment. The Chronicle printed a number of articles critical of this practice. One acerbic commentator mocked the upper-class pretensions of Federalists and attacked the 'knights of the concealed pistol," a group that he predicted would soon be provoking controversies so they could dispatch their opponents with the help of their favorite weapons of choice. Republicans linked Selfridge's pistol with class privilege and painted the Federalists as a murderous elite.12


The Federalist press returned fire with equal intensity. The Port Folio, a leading Federalist magazine, praised Selfridge, who had acted in self-defense and attacked his Jacobin enemies, partisans of the excesses of the French Revolution. In the view of Federalists, the common law, both in England and America, justified Selfridge's actions. Indeed, Selfridge's actions were not only legal, but were also justified by Christian teachings that accepted the legitimacy of self-defense. Interestingly, the one legal source that the Folio did not choose to invoke was the constitutional right to keep and bear arms. The discussion in the press, including Jeffersonian and Federalist papers, saw the issue as one of common law, not constitutional law.13


The jury accepted the argument that Selfridge acted in self-defense. While Federalists breathed a collective sigh of relief, Jeffersonians were outraged. Dr. Nathaniel Ames, a contemporary observer and supporter of Austin's cause, remarked in his diary about the intensity of the public's anger over the acquittal.


Jan. 1, 1807. Selfridge's effigy hanged in Boston.


Jan. 10. Selfridge still hung in effigy various places.


Jan. 31. Selfridge and Chief Justice Parsons hung in effigy in divers parts of continent, New York, Salem, etc.14


Benjamin Austin did not passively accept the outcome of the trial. Within a year of the trial's conclusion Austin presented a memorial to the legislature, imploring them to take action to correct the court's expansive definition of the right of self-defense. Austin claimed that the expansive notion of self-defense actually violated several provisions of the state's constitution. The preamble to the state constitution affirmed that the purpose of government was to "furnish the individuals who compose it with the power of enjoying, in safety and tranquility their natural rights and the blessings of life." Austin also quoted from the state's bill of rights, which affirmed that "no individual shall be deprived of his life, but by the judgment of his Peers, or the law of the land." Similarly, the provision of the constitution asserting that "each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property according to standing laws" was undermined if the judiciary were free to reinterpret the meaning of the right of self-defense unilaterally.15


The legislature considered Austin's appeal but concluded that this was a matter best left to the courts to apply on a case-by-case basis. The meaning of self-defense had evolved under the common law in response to myriad changes in society. It was simply impossible for any legislature to define with the requisite precision a body of criminal law to deal with every case that might arise. It was precisely the genius of the common law to develop by the slow accumulation of wisdom a set of rules that might help guide judges on how to construe the meaning of murder, manslaughter, and excusable homicide. Legislatures could never hope to create a body of statutes sufficiently flexible or comprehensive enough to deal with so complicated an issue.


The impact of the Seffridge case could still be felt decades later. The notorious events of "Bloody Monday" were "long remembered" for years after the trial. In 1842, the Boston Law Reporter included the Seffridge case among its list of America's most "remarkable trials." In his influential treatise on homicide, published in the middle of the century, the eminent jurist Francis Wharton devoted considerable attention to Selfridge's case, and he even went to the trouble of including long excerpts from the trial transcript in an appendix to his volume. According to Wharton, the key issue had been the one that Austin and the Independent Chronicle had fastened on and tried to dispute: the notion that one had only to have a reasonable fear for one's life to respond with deadly force. After Selfridge, the law of justifiable homicide gave greater latitude to defendants to plead that their response had been premised on a potential threat, not an actual threat. Although Wharton believed the law had been interpreted properly, he did express some skepticism about the claim that Selfridge's fear had been reasonable under the circumstances. As Wharton noted, "He had not retreated to the wall, for he fired instantaneously, at the first encounter," and "It cannot be said that a man of thirty, armed with a pistol, can be reduced to desperate danger by the onset of another of eighteen, with a cane in his hand, of which he was holding the heavy butt-end, in a street in which there were a dozen spectators." Thus, Wharton applauded the underlying legal principle elaborated in the case even as he doubted whether the facts had justified the outcome.16


THE SIEGE OF FORT RITTENHOUSE:

TESTING THE STATES' RIGHTS THEORY

OF THE MILITIA


Less than a decade later, after Jefferson had threatened to use the Pennsylvania militia to prevent Federalists from stealing the election of 1800, the militia of the Keystone State was mobilized to fend off a threat posed by the federal government. In 1809, members of the Pennsylvania militia stood poised, bayonets at the ready to prevent the federal government from executing a legal writ issued by the U.S. Supreme Court. The state of Pennsylvania had ordered out its militia to prevent a federal marshal from serving a court order against two old ladies, the heirs to the disputed estate of David Rittenhouse, former treasurer of the state of Pennsylvania. The cause of the conflict was not a weighty matter of constitutional law, but an argument over the proceeds from the sale of a ship captured during the American Revolution.17


The confrontation in the streets of Philadelphia was the final chapter in a long and bitter quarrel over the ship Active, a British vessel seized during the American Revolution. Gideon Olmstead, one of the litigants, had commandeered the ship and claimed exclusive right to the proceeds from its sale. The state of Pennsylvania disputed this claim. Olmstead, they argued, had not completely secured control of the ship before it had been boarded by a ship outfitted by the state of Pennsylvania. The prize money had been the subject of protracted litigation, and the funds had eventually been deposited in the personal account of the state treasurer, David Rittenhouse, pending resolution of the lawsuit. After Rittenhouse's death the money became the property of his estate and passed on to his heirs, two elderly daughters.18


Olmstead sued Rittenhouse's estate in federal court in 1803 and" won a favorable judgment. Unfortunately, his efforts to collect were stymied by the state of Pennsylvania, which passed a law that directed the governor "to protect the just rights of the state" and to use whatever "means and measures that he may deem necessary" to prevent the court from enforcing its judgment against Rittenhouse's daughters. The formal resolution adopted by the General Assembly echoed the language of the Virginia and Kentucky Resolutions, proclaiming that "the causes and reasons which have produced this conflict" should be made public for the benefit of "her sister states, who are equally interested in the preservation of the state rights." Governor Simon Snyder believed that Madison s well-known support for states' rights would lead him to back Pennsylvania's claims. Indeed, the governor described the president as a man who was both "intimately acquainted with the principles of the Federal Constitution, and who is no less disposed to protect the Sovereignty and independence of the several States." Unfortunately for Snyder, President Madison was no longer the leader of an opposition battling against a strongly nationalist and entrenched Federalist administration. He was in fact embroiled in a states' rights challenge from New England Federalists. During the Napoleonic wars, Jefferson restricted American trade with belligerent nations as a means of avoiding war. Madison had inherited this unpopular embargo policy, and by 1809 frustration with the policy had grown so intense in parts of New England that the region was nearly in a state of open rebellion. Pennsylvania's ill-timed appeal to states' rights was not very likely to win much sympathy from the president.19


The federal courts' decisions in favor of Olmstead placed the Madison administration on a collision course with Pennsylvania. Federal marshal John Smith was dispatched to serve the writ against the Rittenhouse heirs. As he approached their elegant home, Smith was accosted by a group of armed Pennsylvania militiamen. One eager militiaman pressed his bayonet to the chest of the startled marshal, ordering him to cease and desist. Smith demanded to speak to the officer in charge. General Michael Bright was quickly summoned to the scene. The marshal informed Bright and his men that he would execute his writ. As Smith stepped forward toward the house, a militiaman again raised his bayonet to the marshal's chest and General Bright informed Smith that if he took another step it would be "at the peril of your life." The marshal prudently withdrew, narrowly avoiding violence. Contemporary commentators noted that the nation had stood a bayonet's length away from a conflict that might have triggered a major constitutional crisis and a civil war.20


Although the source of the conflict was "a paltry sum," the principle of states' rights was not a trifling matter to Governor Snyder, who had put his own political reputation and the honor of his state on the line. In framing their challenge to the federal court's decree, Pennsylvania made ample use of the language of states' rights and the fears of consolidation that had defined Anti-Federalist and Republican thought for the previous decade. The survival of the "Federal system" depended on the "State governments, with their inherent rights" which "must, at every hazard be preserved intire; otherwise the general government may assume a character, never contemplated by its framers." The governor's supporters in the legislature asserted that Pennsylvania had "a sacred duty" requiring it to "discard pusillanimity on the one hand, and rashness on the other." As had been true in the trial of Thomas Selfridge, the mixture of personal honor and partisan politics created a volatile situation.21


Snyder's critics lambasted "his imperil highness Ignoramus the First, governor of Pennsylvania and supreme commander of the defense of Fort Rittenhouse." His opponents took to the streets to protest his decision to risk war over such a trivial sum. On at least two occasions the confrontation between the militia and angry citizens erupted into a full-blown riot. Additional evidence of the controversial nature of Pennsylvania's policy can be gathered from the state's difficulty mustering its militia to support its policy. Once again, militiamen exercised an indirect veto over government policy, offering passive resistance to actions they viewed as rash and ill advised. General Bright complained on several occasions about the difficulty of finding troops to serve and worried that he might not be able to locate enough troops to mount an effective resistance against the federal marshal, who was summoning a federal posse to enforce the, court's judgment. The looming conflict between Bright's militiamen and the federal marshal's posse cast a pall over a city already tense and deeply divided.22


While politicians debated how best to proceed, the federal marshal was engaged in a comic game of cat and mouse with the two elderly widows. On one occasion the resourceful marshal managed to evade the militia guard and enter the house, only to find that .the ladies had absconded. The affair was finally resolved when the wily marshal scaled several fences and succeeded in crawling through a back window to deliver his writ. The tense situation in the streets of Philadelphia had dissolved into farce. With continued opposition now rendered moot, Snyder withdrew the militia from the scene. The Philadelphia Aurora observed that the new nation had never experienced any thing in which the serious and the ludicrous were so strangely intermixed."23


Pennsylvania's aggressive posture was particularly disturbing to the Madison administration, who were coping with the problem of maintaining Jefferson's embargo policy. At the very same moment that the nation was seeking to avoid hostile engagement with Britain and France, Pennsylvania appeared to be engaged in a deliberately provocative challenge to federal authority. The peaceful resolution of the siege of Fort Rittenhouse did not put an end to the affair. Angered by Pennsylvania's defiant behavior, the Madison administration brought charges against General Bright for "obstructing, resisting and opposing the execution of the writ of arrest issued out of the District Court." When the case went to trial, U.S. Attorney Alexander Dallas, who had defended James Reynolds, now represented the government. He reminded jury members of the serious nature of Bright's actions. "The whole power of the confederation, if necessary in arms, against the whole power of one of its members" was a "momentous crisis" that threatened the very foundation of the republic. Dallas compared Pennsylvania's efforts to the kind of lawless behavior of the Whiskey Rebels.24


One of the most remarkable exchanges in the trial dealt with the constitutional right of armed resistance. Bright's attorney, Jared Ingersoll, tried to force the U.S. attorney to concede that states retained a constitutional right of resistance. The prosecution disputed the logic of the states' rights position, arguing that such a view of the rights of the states and the obligations of citizenship would lead to anarchy and civil war. The prosecution even went so far as to concede that secession would be a more logical legal response to hypothetical federal tyranny than armed resistance to dully constituted authority. As long as she remained within the union, Pennsylvania was "bound to the authority of the union, expressed through the regular acts of government." 


The resort to violence was tantamount to an act of rebellion or revolution. In short, while there might be a natural right of revolution, there was no constitutional right of armed resistance.25


The defense asserted a states' rights argument that had become a fixture of constitutional dissent since the Anti-Federalists first voiced it more than two decades before. "Pennsylvania is a free, sovereign and independent state, and has a right to call upon her citizens to protect her just rights and privileges." States retained a right of "self-preservation" and the defendants in this case "did no more than their duty in obeying the orders which they received." Bright's actions were hardly akin to those of the Whiskey Rebels. If anything, Blight's actions were closer in spirit to the American Revolutionaries'.26


The jury wrestled with the complex issues in the case and ultimately issued a special verdict, an unusual outcome that reflected their ambivalence about convicting Bright. The jury clearly was unhappy with the court's instruction on how the law was to be applied and came very close to exonerating Bright. Instead, they adopted a compromise, conceding that if the judge's rendering of the law was correct, then Bright had clearly broken the law. In the end Bright was sentenced to a fine and a three-month jail sentence. As one of Madison's supporters in Pennsylvania noted, "Altho nine tenth of the thinking men are of the opinion the sentence against General Bright and those under his command is perfectly correct yet notwithstanding nothing would give us all more pleasure and satisfaction than to see your Pardon extended to-those men." Madison followed this sage advice and promptly issued a pardon to diffuse any lingering resentment. Although it had been a divisive issue, there was considerable popular sympathy for Bright, who after his release was paraded through the city A celebration honoring Bright drew three hundred participants. The toasts offered on that occasion praised the principles of states' rights and the militia.27


The legacy of the Olmstead affair was mixed. While the federal government scored a modest victory, Bright's continuing popularity demonstrated that sympathy for the states' rights view of the militia had not been crushed. Indeed, the revolutionary potential of Pennsylvania's defense of states' rights was not lost on later proponents of this view who cited the "Pennsylvania Doctrine" as a vindication of their theory.28


CONTINUING CONTROVERSY OVER THE MILITIA


The conflict between Pennsylvania and the Madison administration over the Olmstead affair had been exacerbated by tensions arising from the embargo, a policy that was deeply resented in New England and seaport cities. Growing fears about the possibility of being dragged into European affairs in the Napoleonic era worried many in Congress and prompted a reconsideration of the problem of how to arm the militia. There was widespread agreement in Congress that the Militia Act of 1792, which required citizens to outfit themselves with a musket and ammunition, had been largely unsuccessful. A federal census of the militia's weaponry demonstrated that America's first line of defense against foreign and internal threats was woefully underarmed. To be sure, members of Congress bickered over how to interpret the numbers produced by the census, and a few voices in Congress even argued that the recent census might have underreported the number of guns. These quibbles aside, there was a broad consensus that America's militia was not yet properly armed. As one member lamented, "no discipline could make soldiers of men who mustered . with canes and cornstalks." The idea that America needed a well-regulated militia composed of the trained and armed body of the people was beyond dispute. Widespread agreement on the importance of protecting this civic right did not mean that Americans were in agreement about how to achieve this venerable ideal. Should the government give muskets to citizens directly or provide the states with weapons? Some argued that guns given directly to citizens would be sold by individual militiamen for personal profit. Others argued the opposite case, noting that unless guns were owned by individuals there would be no incentive to maintain them in good working order.29


Even in the midst of a debate over how best to defend the nation against a potential threat from Europe, some within Congress worried about a danger closer to home from the "arbitrary exactions and unconstitutional oppressions" instigated by "the machinations of their own rulers." For those who carried forward this Anti-Federalist and Republican vision it was essential that the "States should be enabled effectually to assert those rights, or to resist those encroachments" by arming their own militias. This more radical states' rights conception of the militia did not garner much support in Congress, but the fact that it found any advocates in Congress at all in the midst of a military emergency is significant, and testifies to the enduring power of this ideology When the issue about arming the militia was finally resolved, Congress adopted a compromise that gave the states tremendous latitude to determine the best manner for arming their populations.30


Despite the best efforts of Jefferson and Madison, America was drawn into war with Britain in 1812. Hostility to the war was especially keen in New England, which had taken up the banner of states' rights. Faced with a central government engaged in policies they viewed as inimical to their interests and potentially subversive of liberty, Federalists had adopted many of the ideas articulated by Republicans more than a decade earlier. In Massachusetts, petitions poured into the legislature demanding that the state "interpose" and protect the rights and well-being of its citizens. Some towns even suggested that it might be necessary to use force to oppose the embargo. Armed public safety committees were created in some towns. Some radical voices in New England advocated direct armed resistance and even went so far as to recommend creating a force of thirty thousand men to protect citizens from the unconstitutional violations of their liberty enacted by the Madison administration. The irony of Federalists invoking states' rights theory was not lost on contemporaries. The Richmond Enquirer proclaimed, "Things turned Topsy Turvy—Federalists turn Anti-Federalists—-The Friends of Order turned Jacobin."31


The antiwar political campaign was led by an aggressive group of young Federalist newspaper editors. One of the most vociferous critics of the war was a young and impetuous Baltimore Federalist editor, Alexander Hanson, whose Federal Republican excoriated administration policy. Supporters of the war rioted and attacked the paper's offices, destroying Hanson s printing press. Rather than call out the militia, the mayor of Baltimore, Edward Johnson, intervened, calrning down the crowd and ordering it to disperse. The mayor's reluctance to use force was not simply a reflection of his sympathy with the war effort, but an implicit recognition that mob action was a legitimate expression of the will of the people. Crowd action in both England and America had a long history. As long as the actions of the mob stayed within the limits established by custom, many magistrates and politicians were apt to overlook extralegal action. According to the traditional scenario that had been played out time and again in the Anglo-American world, the potential victims of mob violence had two options. Either they might flee, as British customs officials had done in the Liberty riot, or accept the ritual humiliation and physical harassment meted out by the community, as Federalists in Carlisle had suffered during ratification.32


While the Jeffersonian mob and the mayor of Baltimore followed the traditional script for this rough-and-tumble example of political street theater, Hanson and the young Federalists decided to adopt a different role. The Federalists prepared to defend their lives and their honor by arms if necessary. The mayor pleaded with the Federalists to abandon this defiant attitude, advising them that such action was not legally defensible and was likely to inflame the situation further. Johnson suggested that the Federalists return home and depend on his own authority to keep the peace.33


Rather than heed the mayor's advice, Hanson and his associates armed themselves and prepared to resume printing their antiadmin-istration polemics. Hanson rented a solid, three-story brick building, a structure which he believed could be more easily defended from the mob. Republican supporters laid siege to his new residence, dubbed by some as "Fort Hanson." Resolved to defend "the house, which was his castle," Hanson and supporters were prepared to use deadly force if necessary. Some of his fellow Federalists doubted the wisdom of adopting such a defiant posture. Not everyone agreed with Hanson s view that armed resistance was fully justified. The group arrived at a compromise, deciding to fire a warning volley over the heads of the crowd in the hope that this would scatter them. The warning had the opposite of its intended effect. After dispersing, the enraged crowd returned to the scene with their own arms.34


When the armed crowd rushed the house, the occupants opened fire and killed one of the rioters. In the melee that followed, more shots were fired. Before the situation deteriorated into complete anarchy a small contingent of militia finally arrived and intervened. The Federalists were escorted into protective custody and marched to the local jail. Rounding up enough militiamen to intervene had not been easy. Many citizens had refused the call to muster. As had been true during the Whiskey Insurrection and the Siege of Fort Rittenhouse, militiamen exercised a"passive veto on government policy, reserving the right to judge for themselves whether or not the government's actions were legitimate. Believing the Federalists were traitors who did not deserve protection, many militiamen simply refused to turn out.35


The riot was widely covered in the press. One newspaper reported that the Baltimore Riot presented a "theater of the most distressing scenes this country has witnessed for many years." Another paper described the events as an example of "perfidy and cruelty" without parallel in American history. The devastation and destruction wrought by the rioters earned Baltimore the nickname "mob town" for years to come.36


Hanson's decision to use firearms to defend himself proved to be extremely controversial. Commentaries in the press broke down along partisan lines, with Federalists praising Hanson s actions and Republicans denouncing them. While Federalists praised Hansons decision to resume publication as a vindication of 'liberty of the press, guaranteed to him by the constitutional laws of his country/' they did not see his use of firearms in similar terms. As had been true in both the Reynolds and Selfridge cases, the defensive use of firearms was not cast as an exercise of a right to bear arms but was defended under common law. Federalists defended the use of firearms by claiming that "a man's home is his castle." The Jeffersonian press disputed this claim, arguing that Hanson was not at home, but at a place of business. Moreover, they argued that his actions were not defensive, but that he had deliberately armed himself and intended to precipitate a bloody confrontation. Denouncing Federalists as Tories, the Jeffersonian press heaped scorn on them as a bunch of "desperados" intent on murder. Rather than accept the argument that Hanson had acted in accordance- with well-established common-law principles of self-defense, Jeffersonians saw the events in a different light. As one paper noted, "They assembled in arms, to the terror of the people of Baltimore." If he feared violence, Hanson was obligated to seek lawful help, not take the law into his own hands.37


A special commission was held to investigate the cause of the riot. A number of witnesses viewed Hanson s belligerence as the root cause of the riot. In their view, his decision to arm himself had deliberately provoked a violent confrontation. Hansons life was not in danger, only his sense of pride. If he refused to accept humiliation at the hands of the crowd, he should have fled the scene. Flight, not fight, was the only morally and legally acceptable course of action. Having rejected the option of flight, he was obliged to bear bis humiliation and accept whatever punishment the crowd chose to deal him.38


The debate over who provoked the violence split the community along party lines. One Federalist testified that great effort had been expended to avoid "any display of arms." Another Federalist took great pains to prove that weapons had been smuggled into the building so that they would not attract attention. One person testified that Federalists had gone so far as to disguise a cask of gunpowder as a barrel of crackers. Republicans wove a different tale. According to their testimony, Federalists were brazen in their actions. The cache of weapons, was not discretely brought into the printing offices but had been unloaded by a group of men with swords drawn, hardly an inconspicuous effort to avoid inflaming the situation.49


The commission investigating the riot explored a number of legal issues concerning the use of firearms, the legitimacy of mob action, and the use of the militia to maintain public order. The actions of the Baltimore mob harked back to an earlier time, when the use of crowd action as a means of enforcing communal norms was an accepted part of Anglo-American law. Indeed, one of the mayor's advisors testified that he was not even sure one could call out the militia to put down the mob. The militia, according to this view, could only be used in cases of invasion or insurrection. Since the mob was acting in support of government policy, it could hardly be described as insurrectionary. In this sense there was little commonality between this mob and the actions of the Whiskey Rebels or the farmers in Fries's Rebellion. The mob in Baltimore had directed its anger at private citizens who had criticized the government, going so far as to denounce them as Tories, an epithet that not only linked them to the British, but also clearly attempted to place them outside of the protection of American law. The mayor's reluctance to use the militia against citizens engaged in protest was entirely consistent with traditional republican approaches to crowd action. Until the violence escalated out of control and mob action moved beyond property damage and simple harassment of dissenters, Baltimore officials were prepared to tolerate the mob and its actions.40


The Baltimore Riot also demonstrates that ideas about the legitimate use of firearms for self-defense were far from settled in American law. The fact that the Federalists had chosen to arm themselves was read by Republicans as a sign of their nefarious designs, not as a legitimate exercise of the right of self-defense. Potential victims of crowd action were not entitled to defend themselves with force of arms. Federalists in Baltimore clearly refused to accept the role they had been assigned in this political street theater and believed that their decision to arm themselves was legal and perfectly moral.


The Baltimore Riot also provides another example of how ill defined American constitutional law was when it came to the subject of the militia. Once again, when faced with a crisis, the loyalty of the militia proved to be up for grabs. When ordered to defend the ideals of law and order and protect the Federalists, many militiamen simply refused the call to muster. This failure would have struck Federalists as yet another sign that this institution had failed to fulfill its proper legal function. Yet, for those who continued to adhere to a distinctly Anti-Federalist andjeffersonian conception of states' rights, or even those who clung to a more populist and localist vision of American constitutionalism, the failure of the militia to turn out was a vindication of their ideals. Despite the efforts of the Constitution to nationalize aspects of this institution, the militia remained in many respects a creature of the states and in some cases of the local community.


Alexis de Tocqueville, author of Democracy in America, traveled to Baltimore more than two decades later and was regaled with stories about the "siege of Fort Hanson." Peter Hoffman Cruse, editor of the Baltimore American, explained to the young French nobleman that "the militia, itself, is the populace, and is of no use when it partakes or condones the passions of the majority." After summarizing the tumultuous events surrounding the siege of Fort Hanson, Cruse noted that "an attempt was made to call the militia; it refused to march against the rioters and did not respond to the call." The refusal -of the militia to protect the protestors, Cruse noted, was a form of passive resistance and served as a popular check on government authority. In this sense the militia functioned in a fashion almost exactly analogous to the jury, which had refused to convict the leaders of the Republican mob. As Cruse noted, cAn effort was made to prosecute in the courts, but the juries acquitted the guilty parties." Both the jury and the militia acted as faithful mirrors of popular belief, and when government overstepped its bounds, the jury and the militia could interpose themselves between citizens and the government to avert a miscarriage of justice.41


THE CONSTITUTIONAL QUARREL OVER THE MILITIA IN THE WAR OF 1812


The fate of Alexander Hanson and the destruction wrought by the mob in Baltimore were themselves a reflection of the intensity of feeling and the depth of the divisions generated by the War of 1812. Hostility to the Madison administration was felt most deeply in New England, where popular dissatisfaction bordered on rebellion. Even among the established elite in New England, opposition to the war led many to contemplate secession as a serious possibility Given the depth of disagreement over the war, it is hardly surprising that governors in New England were reluctant to allow their state militias to support the war effort. The federal government even sought to use conscription to raise the necessary troops to meet the war effort. The challenges of raising troops for the war prompted another reexamination of the constitutional role of the militia.42


Federalists attacked conscription as unconstitutional, arguing that the Constitution authorized the use of militia or the creation of a volunteer professional army, not an army of conscripts. In yet another constitutional irony, the language of states' rights was again adopted by Federalists to challenge Madison s war plans. Perhaps the most eloquent attack on the administrations policies was framed by Daniel Webster, who argued that if necessary the states had a "solemn duty" to "interpose between their citizens and arbitrary power." To justify this stance, Webster turned to New Hampshire's own state constitution, which affirmed that "the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind." Webster did not interpret this clause of his state constitution as authorizing individuals, or even local communities, to nullify unjust government policy, but he did believe that states might exercise such a check. The right of resistance was self-consciously framed in constitutional terms; Webster advocated legal measures, not extralegal armed violence. In the unlikely event that force was required, the only legitimate mode of action was through the state governments. Republican efforts to win approval for conscription ultimately foundered on the shoals of Federalist opposition.43


Conscription was not the only controversy arising from the ambiguous role of the militia under American constitutional law. New Englanders opposed the Madison administration s use of the militia to fight an offensive war against British Canada. Opponents of this policy insisted that state militias could only be used defensively to repel an imminent threat of invasion or put down domestic insurrection. The governor of Massachusetts took the extraordinary step of requesting an advisory opinion from his own state supreme court on the appropriate constitutional uses of the militia in time of war. The judges of the Massachusetts court held that the authority to decide when to call out the militia rested with the governors of each state. While the president might request that the militia be called out, he could only do so with approval of the governor of the state from which the troops were requested. The Massachusetts' court emphasized the limited nature of the Constitutions grant of authority over the militia and implicitly endorsed the idea that the states were constitutionally empowered to engage in a form of passive resistance to federal power by refusing to muster their militias when the summons came from the president.44


During the 1790s, when Federalists had been ascendant, Republican constitutional thought had embraced a strong states' rights agenda. Now that Republicans were in control of the central government, Federalists found many of the same sorts of arguments congenial and used them to oppose Republican policy. James Monroe, Madison s secretary of war, reflected on this irony. He declared his own support for the "rights of the individual States" as indispensably necessary for the "existence of our Union, and of free government in these States." Acknowledging this point, however, did not mean that Monroe accepted the conclusions of the Massachusetts court's advisory opinion. Although the Massachusetts court had not sanctioned the most radical version of the states' rights theory of the militia employed during the electoral crisis of 1800, a view that would have authorized armed resistance to federal power, the court did lend its own considerable moral authority to the notion that states might exert a form of passive resistance to federal policy. Still, the fact that this more moderate variant of states' rights theory had been endorsed by the highest judicial body in Massachusetts alarmed Monroe. The judges, in Monroe's view, had carried "the doctrine of State rights further than I have ever known it to be carried in any other instance." Monroe was technically correct in his assessment. Although Jefferson had embraced a more radical view in 1800, he had not acted upon that theory. Moreover, Jefferson's views were not a formal legal pronouncement by a court. Even in the form of an advisory opinion, a judgment that had no legal force on its own, the Massachusetts high court had given the doctrine of states' rights an invaluable boost. The logic of the court's misguided interpretation of the Constitution, Monroe declared, would leave the nation exceedingly vulnerable to military attack. Monroe also used the occasion provided by his rebuke of the court to underscore the Madison administration's belief that there was no right of resistance against the 'legitimate authority of the United States," a statement that took on added urgency in light of the unrest occasioned in New England by an unpopular war.45


The disagreement between Monroe and the Massachusetts Supreme Court judges arose because the exact boundaries between federal and state control of the militia outlined in the Constitution were open to widely different interpretations. In the case of Houston v. Moore, this problem came before the Supreme Court in another context. The case concerned the authority over courts-martial once the militia had been mustered, a seemingly less contentious issue than the one that divided Monroe and the Massachusetts State Supreme Court. While the incident at the root of Houston v. Moore appeared to be less momentous, the issues in the case forced the question of how authority over the militia would be divided between the states and the federal government. The case also marked the first time the Second Amendment was invoked in a Supreme Court decision.


The issue in Houston dealt with the court-martial of a Pennsylvania militiaman who failed to report to muster.'Although Houston had violated a federal statute, he was tried by a state court-martial. The question before the court dealt with the right of the states to hold such tribunals. Had the state court trenched on a matter that was exclusively within the jurisdiction of the federal courts? The Supreme Court issued a divided ruling, a fact that further illustrated the unsettled nature of trrinking about the militia's role in the federal system. Justice Bushrod Washington, George Washington's nephew, delivered the opinion of the court, declaring that Congress had not given the federal courts exclusive jurisdiction in these matters. Houston's conviction was upheld. The decision was hardly a model of clarity, and Justice Washington confessed that the Constitution s treatment of the division of authority over the militia had not been "formed with as much wisdom as, in the opinion of some, it might have been, or as time and experience may hereafter suggest." Justice Joseph Story, who appears to have consulted with Chief Justice Marshall, authored a dissent that asserted a more robust view of federal power over the militia. Story argued that Pennsylvania was precluded from exercising any authority once Congress had acted to legislate in this area. Story did not doubt the right of the states to "organize, arm, and discipline its own militia in the absence of, or subordinate to, the regulations of Congress." Once Congress acted, state authority was effectively preempted by federal supremacy.


In a brief aside, Story considered the Second Amendment and mistakenly described it as the Fifth. Story noted that there was disagreement over how to interpret the language of this provision of the Constitution. He captured this confusion when he noted that some 'would argue that it "may not, perhaps, be thought to have any important bearing" on the question before the Court. If it did have any relevance, Story thought it "confirms and illustrates, rather than impugns the reasoning already suggested." The Constitution clearly gave Congress ultimate authority over the militia.46


Story recognized that the Second Amendment had been adopted to assuage the exaggerated fears of Anti-Federalists. There had been many who had worried if "congress should refuse to provide for arming or organizing them, the result would be, that the states would be utterly without the means of defense, and prostrate at the feet of the national government." Story confessed it was difficult to understand why this concern had loomed so large in the minds of Americans at the time the Constitution was proposed. Although entirely unfounded, such fears had been "urged with much apparent sincerity and earnestness." Precisely because these apprehensions were "extensively felt, and sedulously cherished," Congress had included protection for a well-regulated militia and the right to bear arms had been included among the amendments proposed by Congress. The adoption of the Second Amendment did not, however, in Story's view, change the fact that the militia was ultimately controlled by Congress.47


A staunch nationalist, Story had little sympathy with the Anti-Federalist suspicions that lay at the core of the Second Amendment. Story's dissent in Houston made clear that the inclusion of the Second Amendment did not achieve what radical Anti-Federalists had sought, a restoration of state control of the militia. In Story's view the Second Amendment did not alter the allocation of control of the militia stated in Article I, Section 8, but merely reaffirmed concurrent jurisdiction. In essence, the Second Amendment stated a political truism: the militia was a vital institution in America's republican system of government and law. The states would continue to play a vital role in nurturing this institution, but Congress would have the final say in all matters pertaining to the militia.48


Story's reiteration of the civic conception of the Second Amendment, a right of citizens to keep and bear arms in a well-regulated militia, captured the dominant view of this right in the period after the War of 1812. Challenges to this ideal would become more intense, not less, in the decades to follow. The notion that the Second Amendment embodied some type of states' rights check on tyranny continued to attract many who feared the federal government's growing power. The idea of a constitutional right of resistance grounded in the Second Amendment would find other sympathetic audiences as well. The constitutional ferment over this issue would even affect the well-established line dividing the constitutional right to bear arms from the common-law right of self-defense. Rather than mark a new period of consensus, the so-called Era of Good Feelings after the War of 1812 actually ushered in one of the most tumultuous periods of change in the history of the Second Amendment and comparable state constitutional provisions.

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TO  BE  CONTINUED