THE  FOUNDING  FATHERS  AND  THE  ORIGINS  OF  GUN  CONTROL  IN  AMERICA


CHAPTER FIVE

RIGHTS, REGULATIONS, REVOLUTION

THE ANTEBELLUM DEBATE OVER GUNS




During his travels in the United States, the young Charles Dickens noted Americans' penchant for arming themselves with a grisly assortment of guns and knives. The English novelist recounted one story that was emblematic of the growing problem of interpersonal violence in the early Republic. The bloody incident recounted by Dickens involved a verbal exchange that turned deadly. Angry words led to an exchange of blows, and when one of the disputants in this altercation attempted to cane the other, pistols were drawn by the two men and gunfire exchanged. The fatal wound, however, was not inflicted by either man's handgun. The mortal wound, Dickens recalled, was delivered with "one of those never failing weapons, a bowie-knife."1


A profound change in the nature of American gun culture occurred in the early decades of the new century. Americans began sporting weapons designed primarily for personal self-defense. The expanding economy of the new century made a staggering array of these personal weapons readily available to consumers. In addition to pistols, there was a gruesome assortment of edged weapons, which, as Dickens's sordid tale suggests, were more reliable and hence more deadly than handguns. Sword canes, small daggers such as the dirk, or the fearsome knife that came to define the rough-and-tumble world of frontier life, the bowie knife (sometimes described as. an Arkansas toothpick) rounded out the options available to those who wished to arm themselves with a dependable edged weapon. While many citizens outfitted themselves with these weapons, others recoiled at their countrymen s penchant for traveling armed and demanded that their legislatures take strong measures to regulate, and in some cases prohibit, this practice. The enactment of these early gun control statutes prompted a backlash that produced the first systematic defense of an individual right to bear arms in self-defense. America's first gun violence problem not only occasioned the first efforts at gun control, it also helped crystallize a new gun rights ideology.2


GUNS AND THE NEW INDIVIDUALISM


American society in the decades after the War of 1812 was more democratic, more aggressive, and more fragmented than the eighteenth-century world the Founding generation had inhabited. American constitutionalism both reflected this profound change and sought to constrain it in ways consistent with the ideal of well-regulated liberty.


One of the most astute observers of American society in this period was the French aristocrat Alexis de Tocqueville, who arrived in America in the spring of 1831 and set out on an extensive tour of the nation. Officially, his purpose was to inspect America's prisons and report on recent reforms. In the course of bis travels and interviews, Tocqueville made detailed observations on American society, which he eventually published as Democracy in America. According to Tocqueville, a distinguishing characteristic of American society in the 1830s, the era of Jacksonian democracy, was a pervasive spirit of individualism. The French commentator confessed that individualism was a novel term coined to capture a new idea. The world Tocqueville encountered was one in transition. The struggle between traditional republican values and a new culture of individualism had a profound impact on legal thinking about the right to bear arms, the militia, and the idea of self-defense.3


The practice of traveling armed with concealed weapons was one of the most dramatic examples of the new "individualism" described by Tocqueville. Some social commentators identified the origins of this practice with the more violent nature of southern culture. In an account of his travels in the South, landscape architect Frederick Law Olmstead, the designer of New York's Central Park, reported a conversation in Kentucky in which he was told, "Among young men a bowie-knife was a universal, and a pistol a not at all unusual, companion." Journalist and historian Richard Hildreth, another contemporary observer of southern culture, remarked that weapons were usually carried for two reasons: "as a protection against slaves" and for use "in quarrels between freemen."4


Although closely identified with southern culture, the problems posed by concealed weapons were hardly unique to the South. One Philadelphia clergyman lamented that "carrying deadly weapons, and avenging affronts, real or imaginary, with instant death" had become a common practice in the cities of the Northeast. Indeed, he complained that "the generation of young men now coming forward in our cities, seem to think it manly to wear dirks and pistols, and to use them on the slightest provocation." An account of life in San Francisco wryly reported that it "does furnish the best bad things that are obtainable in America," including "truer guns and pistols, larger dirks and bowie knives."5


A number of commentators viewed the problem of concealed weapons as a manifestation of deeper troubles in Jacksonian America. Whig journalist Joseph Gales editorialized on this problem, charging that these new developments in American society and law were a "perversion of our political doctrines." These new ideas were fueled by extravagant notions of "personal rights and personal independence." The aggressive theory of self-defense that had taken hold in America was the most dangerous expression of this ideology turning "every man into an avenger, not only of wrongs actually committed against his personal peace and safety but renders him swift to shed blood in the very apprehension of danger or insult." Gales blamed rising levels of interpersonal violence on the new, more aggressive theories of self-defense. He lambasted as "demagogical" those who opposed regulation as "an invasion of American rights" or "unwarrantable restriction of personal liberty."6


Other commentators looked to profound changes in American society, blaming the forces of the market revolution for fueling the rise of individualism. Seeking an explanation for the "low value of human life" in Jacksonian America, Reverend H. A. Boardmen blamed the values of the marketplace for corrupting America. Others followed Tocqueville's lead and blamed the violence of American society on democracy. The British traveler Charles Augustus Murray looked to an excess of democracy, a charge that prompted one reviewer of his book to denounce the suggestion that "the execrable custom of carrying about the person the bowie knife, or pistol, or other deadly weapon, are properly attributable to democratic habits."7


The proliferation of handguns and knives not only led to more deadly interpersonal violence, but also to an escalation in the number of mortalities resulting from collective violence. By the 1840s America had entered an intense period of political unrest. Rioting and mob action wreaked havoc on American towns and cities. The primary targets of this violence, African-Americans, abolitionists, Mormons, and Catholics, were considered outsiders in American society. Firearms played a central role in the carnage of this era.8


In response to the perception of increasing levels of interpersonal violence, states shifted their regulatory policies toward more comprehensive measures designed to limit the use or prohibit ownership of concealed weapons. Ironically, the first gun control movement helped give birth to the first self-conscious gun rights ideology built around a constitutional right of individual self-defense. The struggle between these two opposing ideologies would have profound consequences for the subsequent history of the right to bear arms in America.


AMERICA'S FIRST GUN CONTROL       
MOVEMENT


Kentucky passed the first law designed to curb the practice of carrying concealed weapons in 1813. Violation of the statute was punishable by a hefty fine of one hundred dollars. That same year, Louisiana passed an even more comprehensive act banning concealed weapons. The preamble of the act explained the urgent need for such a law to stem the "assassinations and attempts to commit the same," which the authors of the law complained "have of late been of such frequent occurrences as to become a subject of serious alarm to the peaceable and well disposed inhabitants of the state." In addition to imposing a fine for traveling armed, the Louisiana statute made it a capital offense "to stab, shoot, or in any way disable another person by such concealed weapons." Although the problem of concealed weapons was particularly acute in the South, the issue was hardly uniquely southern. Indiana adopted a ban on concealed weapons in 1820. Politicians and social commentators in other parts of the country also remarked on the social problem posed by this pernicious practice. Further east, New York's Governor De Witt Clinton warned the legislature that "our present criminal code does not sufficiently provide against the consequences which may result from carrying secret arms and weapons." This cowardly practice threatened "an essential right of every free citizen." Rather than treat the right to carry concealed weapons as a fundamental liberty or constitutional right, Clinton cast the practice as a threat to public liberty. The fundamental right government needed to protect, he argued, was the right of citizens to enjoy their liberty free from the fear created by concealed weapons. In the ensuing decades, Georgia, Virginia, Alabama, and Ohio enacted laws against concealed weapons.9


The first laws banning concealed weapons enacted in the period between 1813 and 1859 were essentially time, place, and manner restrictions. Acting under the authority of the individual states' police powers, regulations on weapons carried forward the logic of earlier exercises of the state's regulatory powers. Prohibitions on the practice of carrying concealed weapons were little different than laws that established rules about the storage of gunpowder, restricted hunting, or prohibited the discharge of weapons in certain areas. The second wave of regulations went even further, moving beyond time, place, and manner restrictions. These new, more robust laws criminalized the sale or possession of certain weapons, effectively moving from regulation to prohibition of certain classes of weapons. In 1837, Alabama increased the penalties for using bowie knives, one of the most fearsome edged weapons. The law also placed a heavy tax on the sale of such weapons. Georgia and Tennessee followed suit with more wide-ranging laws prohibiting the sale of pistols, dirks, and sword canes. These weapons were targeted as public nuisances that might legitimately be prohibited.10


At approximately the same time that some states were tightening gun regulations, others were writing into their constitutions more robust statements aifirniing the right of individuals to have weapons for self-defense. Rather than follow the eighteenth-century model that affirmed "the right of the people to bear arms in defense of themselves and the state." Mississippi (1819) paved the way with individualistic language that proclaimed that each citizen had a right "to bear arms in defense of himself and the state." A year later, Connecticut used Mississippi as the model for its new provision on the right to bear arms. Other states rejected the new language and reaffirmed the traditional civic model of the right to bear arms. Maine's constitution, adopted the same year as Connecticut's, declared that "every citizen has a right to keep and bear arms for the common defence." Perhaps the most interesting reformulation of the right to bear arms in the Jacksonian era occurred in the 1820 Missouri constitution, which asserted "that the people have the right peaceably to assemble for their common good, and to apply to those vested with the powers of government for redress of grievances by petition or remonstrance; and that their right to bear arms in defence of themselves and of the State cannot be questioned." Missouri not only chose the older civic language, but it also framed the right of assembly in a distinctly eighteenth-century fashion, affirming that it was a right to assemble to promote the common good. The right to assemble and the right to bear arms were each civic activities that engaged citizens in a collective effort. The linkage between the two in the Missouri Constitution made these connections even more pronounced.11


Detailed records of the debates within these early Jacksonian-era constitutional conventions do not exist. Some sense of the spectrum of contemporary opinion on the right to bear arms, however, can be obtained from the debates in the Michigan constitutional convention (1835), which were recorded. The convention s first formulation of this right echoed Mississippi's language, which provided that "every man shall have a right to bear arms in defense of himself and the state." A motion was made to strike this language and replace it with a more traditional civic formulation: "Every citizen shall have a right to keep and bear arms in the common defense." One delegate challenged this civic formulation, fearing that "the legislature might forbid a man to keep a musket." Proponents of a more expansive and individualistic conception of the right to bear arms eventually prevailed, and the convention restored the more individualistic language it had originally borrowed from Mississippi.12


The two opposing theories of the right to bear arms, civic and individual, collided in court when citizens challenged the new gun control laws enacted by state legislatures. As judges struggled to make sense of the meaning of the right to bear arms and weighed the new restrictions on the possession and use of firearms, they considered the scope and meaning of the right to bear arms under state constitutional law.


JUDGING THE RIGHT TO BEAR ARMS


Kentucky's law against wearing concealed weapons, including sword canes, produced the first serious court challenge to the new gun control laws. In Bliss Commonwealth (1822) the state supreme court reversed the lower court's decision that upheld this law. The Kentucky court not only interpreted bearing arms as an individual right, but it asserted that this right was not subject to reasonable regulation. "Whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the Constitution." The notion that constitutional rights were "absolutes without any limits short of the moral power of the citizens to exercise it" stood well outside mainstream jurisprudence in both the Founding and antebellum eras.13


The Bliss court's extremism prompted outrage in Kentucky. A committee of the state's House of Representatives ridiculed the court's decision. To suppose that bearing arms referred to carrying weapons in a private capacity for self-defense was "perfectly ridiculous" since the state could not compel one to "wear dirks or knives for the purposes of self-defense." In its detailed critique of the logic and assumptions of the ruling, the Kentucky House not only delivered a stinging rebuke to the justices for their odd construction of the state constitution, but the legislature also presented one of the most lucid explications of the traditional civic meaning of bearing arms in the antebellum period.14


According to the Kentucky House, the Bliss court had misconstrued the historical origins of the right to bear arms, which had nothing to do with personal self-defense but was occasioned by the historical memory of specific "acts of tyranny and oppression" endured by the ancestors of those who had drafted the Constitution. The right to bear arms was intended to prevent the government from disarming the militia. The arms covered by this clause were clearly the "weapons of the soldier, such as could be advantageously used in "opposition to government" not those "appropriate to individual contest in private broils." After faulting the court's shoddy understanding of history the committee then turned to the language of the text, observing that "the term to bear arms" is in common parlance, even at this day, most usually and most appropriately applied only to the distinctive arms of the soldier, such as the musket or rifle. Ordinary usage supported a military reading of this phrase, and to illustrate this point the committee pointed out that young boys, the old, and the infirm were still listed among those groups exempted from the obligation to bear arms.15


In addition to the historical evidence and textual arguments against the individualistic reading of the right to bear arms, the house committee offered one other argument based on the structure of the Kentucky Constitution. The phrase bear arms appeared in an earlier provision of the Constitution that exempted those with conscientious objections to military service from bearing arms. One of the "well established rules of construction" governing the interpretation of legal texts, they stated authoritatively, was that "the same phrase should receive one and the same construction, in every part of one and the same instrument; and where it is doubtful as used in one part, it shall be settled by its meaning as used in another part." The court should have interpreted the meaning of the phrase bearing arms in the same sense in which it was used in the clause protecting the rights of conscientious objectors. Since the legislature had no power to compel citizens to bear arms for personal defense, the only reasonable interpretation was that bearing arms did not refer to personal self-defense, but was an activity inextricably linked to common defense. Kentucky eventually changed the language of its state constitution to effectively overrule the Bliss court's holding, explicitly enacting an amendment allowing the legislature to ban concealed weapons.16


In the decades after Bliss a number of courts weighed in on the issue, and most rejected its individual rights reading of arms bearing. Two cases in particular would come to define the orthodox legal view of the matter. The first of these cases, Aymette v. State (1840), involved the constitutionality of a Tennessee law against bowie knives. The court's decision echoed many of the ideas advanced by the Kentucky House in its critique of Bliss. The meaning of the constitutions provision on arms bearing had to be deduced from the evil it had sought to alleviate. Tracing the roots of this principle to an ancient Anglo-American opposition to standing armies, the court concluded that the purpose of the right was to make it possible for the people to unite "for their common defense to vindicate their rights." Building on this premise, the court averred that the only weapons entitled to constitutional protection were those connected with the militia. Bearing arms, the court concluded, referred to an activity that was exclusively military in nature. 


A man in the pursuit of deer, elk, and buffaloes, might carry his rifle every day, for forty years, and yet, it would never be said of him, that had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk, or pistol concealed under his clothes, or a spear in a cane. 


Although the court acknowledged that militia weapons were constitutionally protected, it accepted that the state could still regulate the manner in which these weapons might be kept or borne. Weapons that had little connection to military preparedness were not given any constitutional protection. In the view of the Aymette court, the legislature enjoyed the widest possible latitude to regulate pistols or other weapons that had negligible value in promoting the maintenance of a well-regulated militia.17


Two years later, in State v. Buzzard, the Arkansas Supreme Court refined the civic model advanced in Aymette. Invoking a concept central to Anglo-American jurisprudence since Blackstone, the court wrote that the goal of the Constitution was to protect those rights "essential to the enjoyment of well regulated liberty." To conclude, as had the court in Bliss, that the right to bear arms was not subject to reasonable regulation was to encourage anarchy, not liberty. Regulation of weapons was a legitimate and necessary exercise of the state's police powers. The decision reiterated that the purpose of bearing arms was not to "enable each member of the community to protect and defend by individual force his private rights against every illegal invasion." Protection of this estimable right was intended to "enable the militia to discharge" their important public trust. One of the most interesting features of the decision was its frank recognition that two competing models of the right to bear arms had emerged under state constitutional law. Although some states had embraced a more expansive individual rights conception of arms bearing, the court took judicial notice of the fact that neither the Arkansas state constitution nor the federal Bill of Rights had employed this more individualistic formulation of the right.18


Additional evidence that American law was divided over the meaning and scope of the right to bear arms and its connection to the right of self-defense may be found in the notorious 1852 Kentucky murder trial of Mattews Ward. In contrast to Reynolds and Selfridge, which were both closely connected to bitter partisan conflicts of the Jeffersonian era, the Ward case was not linked to animosities stoked by party rage. Sadly, the events that triggered the fatal confrontation between Ward and his brother's teacher, William Butler, were almost trivial. The incident began over a bunch of chestnuts. The stern teacher had confronted the younger Ward boy about eating during class. When William Ward denied having consumed the chestnuts, Butler called him a liar and whipped him, a severe but not unusual form of school discipline in the mid-nineteenth century. The next day the boy's brother, Mattews Ward purchased two small pistols and returned to the school with William and another brother, Bob, to confront the teacher. Harsh words were exchanged, Matt calling the teacher a "Damned scoundrel" and a "coward." Mattews Ward and Butler scuffled, and in the course of the altercation, Ward pulled out his pistol and fatally wounded his opponent. Ward was arrested and charged with murder.19


The Ward family was among Louisville's most prominent. William Butler was also a pillar of the community. Given the high-profile nature of the killer and victim, the case attracted considerable attention and was widely covered in papers across the South, Midwest, and Northeast. Ward's father spared no expense defending his son. He hired a team of eighteen lawyers to defend Mattews, including John Crittenden, who had served as governor of Kentucky and attorney general of the United States.20


Ward's decision to arm himself was the central issue in the case. The same issue had been raised in both Reynolds and Selfiidge. Two of the defense team mimicked the strategy employed in Reynolds and Selfiidge, observing that the right of self-defense was a natural one that had been incorporated into common law. The right of self-defense, however, had been greatly expanded in America. While English common law required that individuals retreat, the defense reminded the court that the case of Selfiidge had set a new standard that allowed a citizen to respond with deadly force if he had "reasonable grounds to apprehend that he is in such danger."21


The prosecution also adopted the same tactic used in both Reynolds and Selfridge and argued that Ward's decision to arm himself with a pistol prior to confronting Butler could be taken as evidence of his desire to provoke a conflict. This view was challenged by the defense, who asserted that 


a man has a right to carry arms; I am aware of nothing in the laws of God or man, prohibiting it. The Constitution of Kentucky and our Bill of Rights guarantee it. The Legislature once passed an act forbidding it, but it was decided unconstitutional, and overruled by our highest tribunal, the Court of Appeals. 


Crittenden made a similar appeal: "The Constitution guarantees to every man the right to bear arms. No law takes it away and none ever could." Accordingly, Crittenden challenged the prosecution s argument that one could "impute unlawful motives" and "murderous intent" to a citizen exercising a basic constitutional right. In contrast to the two earlier cases, Reynolds and Selfridge, Ward's lawyers took advantage of the doctrine advanced in Bliss and wrapped their client's actions under the banner of a constitutional right to bear arms:"22


Ward was acquitted. Although the jury may have been persuaded by the defense, 'particularly given the precedent established by Bliss, Louisville residents were outraged by the decision. Hundreds of angry citizens gathered to protest the verdict, and the crowd took the unusual step of hanging the jurors in effigy. Hostility to the decision was so great that money was raised to commission a statue to honor the slain teacher, Butler. A citizens' committee attacked the verdict as "contrary to our ideas of public justice, and subversive of the fundamental principles of personal security guaranteed to us by the Constitution of the state." Rather than embrace the expansive individual right to bear arms championed by Ward's lawyers, Lexington residents denounced this doctrine. For the people of Lexington, the right requiring protection was not an individual right of self-defense, but rather the right to be free from the danger posed by such aggressive behavior, a view similar to the one championed by Benjamin Austin in his appeal to the Massachusetts legislature written almost fifty years earlier. The people's right to be free from the threat of violence took precedence over the individual's right to arm himself. Ward's own fate may well be the most telling commentary on the whole trial. Although the jury exonerated him and he escaped legal punishment, he never recovered from the infamy and opprobrium attached to his reputation. His defense of personal honor cost him his place in polite society, and he remained a pariah for the rest of his life.23


Outside of Kentucky the case drew equally scathing condemnations. A lengthy article in the Monthly Law Reporter denounced the "atrocity of the deed for which the prisoner was indicted." The case was "a disgrace" that ultimately revealed more about "Kentucky justice" than it did about American law. Ward had clearly benefited from the anomalous holding in Bliss. Still, even outside of Kentucky the ideas advanced by Ward's lawyers had entered the legal mainstream. Although the civic model articulated in Aymette and Buzzard represented the dominant approach to this issue, the alternative individual rights conception presented by Bliss would only grow stronger over time.24



THE SECOND AMENDMENT IN

ANTEBELLUM CONSTITUTIONAL

COMMENTARIES


At the beginning of the nineteenth century, St. George Tucker had trouble finding a publisher for an edition of Blackstone's Commentaries. By the middle of the Jacksonian era there were at least a half a dozen learned constitutional treatises in print. In addition to scholarly discussions of the constitution, publishers also began printing popular guides intended for the average citizen. These popular texts soon outnumbered the more erudite works of learned jurists. A reader might learn constitutional ideas by following the lessons contained in a Youth's Manual of the Constitution of the United States or engage in Familiar Conversations upon the Constitution. To understand antebellum constitutional commentary one must consider these popular guides alongside the more familiar works by learned judges and celebrated lawyers.25


The most important legal figure to take up the meaning of the Second Amendment in the first half of the nineteenth century was the eminent jurist Joseph Story, who took a leading role in establishing Harvard Law School and was one of the most influential justices of the U.S. Supreme Court. Story also saw the purpose of the amendment in terms of the preamble's discussion of the need for a well-regulated militia, an institution essential to the survival of the American republic. 


One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia. The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs of ambitious men.26


Echoing Tocqueville's critique of America's excessive individualism, Story  worried that for the first time in American history, the institution of the militia was in danger of disappearing from American life. He bewailed citizens' growing tendency to abandon their public obligations for mere private convenience. 


And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.27


Story bemoaned this change and stated in unequivocal terms his fear that the decay in militia discipline would lead to something unthinkable during the Founding era: domestic disarmament and the rise of a standing army28


Story was certainly not the only commentator to bemoan the decline of traditional republican values and the rise of a more individualistic ethos in America. Benjamin Oliver, another New Englander and a prolific author of popular law books, endorsed these judgments. In his influential guide to the Rights of an American Citizen, Oliver endorsed the traditional view that the Second Amendment's preamble provided the "true construction" for interpreting the meaning of the amendment. Indeed, Oliver declared that the original understanding of the right to bear arms was "intended to apply to the right of the people to bear arms for such purposes only." Oliver conceded that this original understanding was slowly being challenged by the new view that saw this right in more individualistic terms, a trend that he regarded as deeply disturbing. This new conception of the right to bear arms was reflected in the increasingly "common practice in some parts of the United States, for individuals to carry concealed weapons about their persons." In Oliver's view, this new behavior was "cowardly and disgraceful."29


THE ABOLITIONIST THEORY OF THE RIGHT TO BEAR ARMS


While support for an individual rights theory of arms bearing had slowly emerged under state constitutional law, another even more radical theory of the Second Amendment was being developed by abolitionists. According to this new theory, the Second Amendment not only protected a fundamental right of personal self-defense, it provided the constitutional foundation for an individual right of revolution. The abolitionists were not the first group in America to see the revolutionary potential of the Second Amendment. Their new theory, however, broke with earlier revolutionary views of the Second Amendment by severing this right from any connection to the militia. In the eighteenth century the most radical theories of the Second Amendment were all conceptualized in terms of a right of collective resistance. States' rights theorists such as St. George Tucker had argued that this awesome power resided in the states. Proponents of popular constitutionalism, including the Whiskey Rebels, had defended the right of local communities or popular conventions to assert this right. Radical abolitionists broke with both of these earlier militia-based views of resistance and fashioned a new individualistic conception of this right that not only included freemen, but also extended to slaves. The logic of this new theory would inexorably lead to John Brown's abortive raid on Harpers Ferry.30

Nineteenth-century abolitionists had been divided between proponents of gradual and immediate emancipation. Eventually support for incremental reform gave way to calls for an immediate end to slavery. Although their language was often inflammatory, most abolitionists continued to embrace nonviolence as the preferred method to achieve their goal. By the 1840s, however, the rifle usurped the Bible,  as moral suasion gave -way to armed resistance in the fight against the evil of slavery. By the middle of the century, a new revolutionary theory of the Second Amendment grounded in an individual right of armed resistance had become a cornerstone of abolitionist ideology.31 


Abolitionist Joel Tiffany unabashedly defended an insurrectionary theory of the Second Amendment in his 1849 Treatise on the Unconstitutionality of Slavery. The expansive right Tiffany defended was about individual, not collective, self-defense: "The right to keep and bear arms, also implies the right to use them if necessary in self-defense." A similar view of the right to bear arms was defended by abolitionist Lysander Spooner, who averred that the U.S. Constitution recognized  a right of armed resistance and noted that the "constitutional security    I for the right to keep and bear arms, implies the right to use them."


In keeping with his radical conceptualization of the right to bear arms, Spooner argued that the Second Amendment merely recognized "the natural right of all men to keep and bear arms for their personal defense." Such a right was "palpably inconsistent with the idea of his being a slave." There was no constitutional right, Spooner argued, to deny any individual, even a slave, the freedom to keep and bear arms for their own defense. Claiming such a right was one thing, but exercising it was another. In Spooner's constitutional vision, a reformulation of the Second Amendment could be achieved in practice by an equally bold reform of the jury. In essence, Spooner recommended a form of jury nullification. By refusing to convict those who exercised an individual right to bear arms, juries could help sustain a radical view of the Second Amendment. One need only, Spooner wrote, "show, to the satisfaction of a jury, or even any one of a jury, that the law he resisted was an unjust one."32


The radicalization of abolitionists intensified in the 1850s. A measure of this shift can be seen in the transformation of Henry C. Wright, an abolitionist who began as a pacifist but slowly adopted a more militant posture. Wright came to believe that the abolitionist credo—"resistance to tyrants is obedience to God"—-no longer required peaceful resistance, but demanded that every individual "arm himself with a pistol, or a dirk, a bowie-knife, a rifle, or any deadly weapon" and kill any individual who would attempt to "re-capture and return to bondage fugitive slaves." Wright was not the only antislavery activist to make the intellectual journey from nonviolence to violence. This trend was greatly facilitated by the growing levels of violence in the western territory of Kansas. The passage of the Kansas-Nebraska Act in 1854 introduced the doctrine of popular sovereignty into American politics, effectively giving settlers the right to determine the issue of slavery in the Territory of Kansas. Proslavery forces and abolitionist supporters poured into Kansas, hoping to influence the outcome of the slavery question. Both sides came heavily armed and showed little reluctance in using violence to defend themselves. Some on both sides went even further, engaging in a campaign of terror against their political opponents. As a result of this escalation of bloodshed, Kansas was plunged into a miniature civil war in the mid 1850s.33


In response to the epidemic of violence in the Kansas territory, abolitionists mounted an effective campaign to arm antislavery settlers. In a widely quoted manifesto of the new, more militant abolitionist credo, Minister Henry Ward Beecher argued that in the battle against proslavery forces in Kansas "there was more moral power" in a Sharps rifle than "in a hundred bibles." Sharps rifles soon earned the nickname "Beecher's Bibles." Beecher took an active role raising money for weapons and rallying abolitionists to the cause of Kansas. On one occasion, Beecher pledged to pay half the cost of outfitting an expedition of recent Yale graduates with rifles. On their day of departure, Beecher presented each man with a Bible and a Sharps rifle. Aid committees formed to help abolitionist forces in Kansas raise money for the purchase of weapons. One group acknowledged donations by giving contributors a lithographed certificate with the language of the Second Amendment prominently emblazoned upon it. The Emigrant Aid Society, a New England-based abolitionist organization, shipped several hundred Sharps rifles in crates marked "books."34


The violence in Kansas prompted Senator A. P. Butler of South Carolina to suggest the government might indict and disarm those individuals who had chosen to use the cartridge box in place of the ballot box to achieve their political goals. Butler's suggestion prompted an angry response from the ardent abolitionist senator from Massachusetts, Charles Sumner. In an impassioned and widely reprinted speech, "The Crime against Kansas," Sumner reminded the Senate that "the rifle has ever been the companion of the pioneer, and under God, his tutelary protector against the red man and the beast of the forest." Having conjured up the mythic image of a lone pioneer, Sumner went on to lecture his fellow senators that "never was this efficient weapon more needed in just self-defense, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached."


The attack on Butler took a personal turn when Sumner compared the South Carolinian to Don Quixote and accused him of taking "the harlot, Slavery" as his mistress. Outrage over Sumner's inflammatory rhetoric was intense in the South. No one was more incensed by the attack on Southern honor than Congressman Preston Brooks, Butler's cousin. Attacking the "Crime against Kansas" speech as a "libel on South Carolina, and Mr. Butler," the impetuous congressman resolved to expunge the insult against his family and state by thrashing Sumner, whom he believed to be a man so bereft of honor that he was not even worthy of a duel. Brooks approached Sumner while he sat at his desk on the Senate floor, and before the Massachusetts senator could rise and meet his attacker, Brooks began beating him about the head with a cane. Trapped by his Senate desk, which was bolted in place, Sumner collapsed in a bloody heap on the floor of the Senate. Sumner's blood mingled with that of Kansas in the reports in the press. The pro-abolitionist New York Tribune bemoaned the fate of the nation when the decorum of the Senate could be shattered by the South's barbaric code of behavior, which glorified "the lash, the bowie-knife and the pistol." Southern responses were equally strong. To compensate him for the damage to his cane, proslavery sympathizers inundated the congressman with dozens of new canes.35


Sumner's speech captured the essence of the radical abolitionists' reformulation of the Second Amendment as an individual right enjoyed by everyone, including slaves. Abolitionists not only rejected the traditional linkage between the militia and the right to bear arms; they also believed that individuals, not states or communities, could legitimately claim a right of armed revolution. Radical abolitionist constitutional theory would come to play a crucial role in defining the ideology of an important segment of the Republican Party. The individual rights theory of the Second Amendment had now moved from the margins of American constitutional discourse to the center.


STATES' RIGHTS AND POPULAR

CONSTITUTIONALISM: THE COLLECTIVE

RIGHT OF RESISTANCE IN ANTEBELLUM

CONSTITUTIONAL THEORY


The states' rights theory of armed resistance to federal authority took on a more immediate and potentially troubling character during the nullification crisis in the late 1820s. Triggered by opposition to federal tariff policy, which they believed posed an economic threat to the South's ability to export agricultural products, South Carolinians reasserted a radical version of the states' rights ideas. Although John C. Calhoun was the best-known advocate of states' rights, he was hardly the most radical voice within his state. Calhoun was outflanked by planter Robert J. Turnbull, whose "Brutus" essays addressed the issue of armed resistance directly. Brutus conceded that "the idea of resistance of any one N State, or number of States, to the acts and measures of the government, is a measure that can never be contemplated but with pain." Still, such action was a necessary part of the checks and balances that protected liberty under the American constitutional system. "Resistance and firm resistance is the only course to preserve the Federal Constitution in its pristine purity." Turnbull took great pains to distinguish between acts of constitutional resistance and the anarchic actions of individuals or groups who acted against government authority. Although the theory Turnbull advanced came close to being tested in the late 1820s when South Carolina and the federal government nearly came to blows, an armed confrontation was averted by political compromise.36


South Carolina nullifiers and Northern abolitionists were hardly the only groups in America dissatisfied with the drift of American politics and constitutional development in the antebellum era, nor were they the only ones forced to ponder the limits of constitutional resistance within the framework established by the Constitution. The populist ideology that had impelled Shays and the Whiskey Rebels to take up arms had never been eradicated from American life. This revolutionary ideology bubbled to the surface of American politics during the Dorr Rebellion (1842).37


Rhode Island lagged behind many states in Jacksonian America in adopting universal white male suffrage. Frustrated by intransigence from powerful interests supporting the status quo in Rhode Island, Thomas W. Dorr and his supporters claimed a constitutional basis for overturning the existing government of the state of Rhode Island. When the Dorrites attempted to take control of the state government, the existing antireform government mobilized the state militia and requested help from the federal government to crush the rebellion.


The Dorrites themselves were divided over the appropriateness of using arms to force voting reform in Rhode Island. They called an extra-legal constitutional convention in which they adopted a new frame of government that provided a more expansive right of suffrage for white men. Elections were then held under the new rules, and Dorr was elected governor. The existing government, however, refused to recognize the new regime. Committed to defending the new state constitution, Dorr and his supporters organized their own militia units and attempted to"seize the public arms stored in the Providence arsenal. A combination of bad luck and even worse weather frustrated Dorr's plans. What might have become a deadly serious affair quickly descended into a comedy of errors. When the Dorrites demanded that the arsenal turn over its supply of weapons to the rebel forces, the officer in charge curtly responded that he had never heard of a Governor Dorr and refused to give up the weapons. The siege was a disaster. The Dorrites' artillery consisted of two rusted Revolutionary-era cannons that were so antiquated they were utterly useless. The existing state militia, loyal to the ruling anti-Dorr government, aided by the militias of neighboring states, easily put down the rebellion.



The issues the Dorr Rebellion raised came before the U.S. Supreme Court in a circuitous manner. One of Dorr's supporters, Martin Luther, sued a member of the state militia for trespass when the officer entered his home during the rebellion. Judge Stoty heard the case on circuit and delivered a blistering condemnation of the Dorrites' revolutionary aspirations. When the case eventually came before the Supreme Court as Luther v. Borden, the Supreme Court was asked to consider the meaning of the Constitution s provision guaranteeing each state a republican form of government. The Dorrites hoped to prove that a right of revolution was implicit in the concept of republican self rule.38


In his Commentaries Story had described the militia and the right to bear arms as "the palladium of the liberties of a republic." His response to the Dorrites demonstrated that his visions of the Second Amendment and the militia were hardly revolutionary. Construing the law of treason in broad terms, Story denounced the Dorrites in his jury charge. Indeed, Story's construction of treason seemed to hark back to the views of the Federalist judges during the Whiskey Rebellion. Story reminded the jury that if 


the assembly is arrayed in a military manner, if they are armed and march in a military form, for the express purpose of overawing or intimidating the public, and thus they attempt to carry into effect the treasonable design, that will, of itself amount to a levy of war, although no actual blow has been struck.


The Second Amendment was not the foundation for a constitutional right of revolution in Story's constitutional theory.39


Benjamin Hallet, the counsel for Martin Luther and a prominent Dorr supporter, defended the legitimacy of a constitutional right of revolution. To support this claim, Hallet noted that several constitutional provisions facilitated such a right. Among those he cited to substantiate this claim were those provisions of the Bill of Rights that "secured the right of the people peaceably to assemble, and to keep and bear arms." Hallet went further, declaring "that in changes in government, the people of the States hold the 'sacred right of revolution,' " The government's view was equally emphatic: "The Constitution of the United States has annihilated the right of revolution."40


Few Americans would have disputed Story's claim that the Second Amendment was the grand palladium of liberty. Finding any common ground on what this meant in practice proved increasingly difficult by midcentury. For Dorr's conservative opponents, an armed population organized as a militia was a bulwark against revolutionary upheaval. The Dorrites took the opposite view; in their minds the Second Amendment provided the foundation for a collective right of revolution. Although the Dorr Rebellion raised fundamental questions about the meaning of republican government and the right of revolution, the Supreme Court avoided ruling on these potentially explosive issues by developing the doctrine of political questions, a category of constitutional disputes that were best settled by the political branches, not the judiciary.41


THE WIDENING GULF OVER THE MEANING OF THE RIGHT TO BEAR ARMS


In the decade between 1845 and 1855 a half dozen states revised their constitutions. The debates within these conventions over the meaning of arms bearing reveal how deeply contested the right to bear arms was at midcentury. The two opposing theories that dominated state constitutional law, civic and individual, were pitted against one another in these debates. 


The debate in the Texas Convention (1845) was particularly spirited. The issue before the convention focused on revising the language of the 1836 constitution that affirmed that "every citizen shall have the right to bear arms in defense of himself and the republic." One delegate proposed language closer to the eighteenth-century civic formulation, suggesting that the provision ought to read that "the free citizens of this state shall have a right to keep and bear arms for their common defense, provided the Legislature shall have the right to pass laws prohibiting the carrying of deadly weapons secretly." The author of this revision expressed his concern that under the 1836 constitution's more individualistic formulation of this right, the legislature might not be able to regulate concealed weapons. Another delegate endorsed this change by reminding the convention that "the object of inserting a declaration that the people shall have a right to bear arms" was for a specific purpose "that they may be well armed to the public defense." The distinction between the common-law right of self-defense and the constitutional right of bearing arms emerged in the course of debate when one member of the convention reminded his fellow delegates that "it is not a supposition which can arise in a country where the common law prevails, that it is necessary to bear arms for protection against a fellow citizen." The convention even considered explicitly borrowing the Second Amendment's formulation of the right to bear arms: "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." This motion passed but was later superceded by a subsequent proposal to restore the 1836 language affirming an individual right to bear arms. Ultimately the convention reaffirmed this language: "Every citizen shall have the right to bear arms in the lawful defense of himself and the state."42


Although the debating of the meaning of the right to bear arms was often done with an air of deadly seriousness, the subject occasionally provoked humor as well. When a delegate at the Indiana constitutional convention suggested that "no person shall be restricted in the right to carry visible arms," another delegate interjected that the words "or eyes" should be inserted after arms. The report of the proceedings wryly noted that "the convention was convulsed in laughter and thereafter returned to its business."43


The most astute observers of American society recognized that legal thinking on the meaning of the right to bear arms and self-defense was struggling to keep pace with changing mores and social norms. One measure of this change may be found in the profound shift in attitudes toward the use of firearms against mob violence. When confronting an angry crowd during the Baltimore Riot of 1812, the city's mayor counseled Federalists not to arm themselves, and he expressed considerable reluctance to call out the militia to preserve order. The deference to the will of the people expressed by Baltimore's mayor had largely eroded by the time of the Philadelphia Kensington Riots in 1844.44


Tensions in Philadelphia at this time combined elements of political and interethnic conflict. Protestants in the "City of Brotherly Love" were engaged in a protracted and bitter struggle with Catholics over the use of the Bible in public schools. They were also agitating for a series of anti-immigrant measures as a part of a larger nativist, anti-Catholic campaign. When the two groups encountered each other in the city's streets, the pitched battle that ensued escalated into a full-scale armed conflict that took the city more than a week to suppress. 


Sidney George Fisher, a lawyer and political essayist, made a number of observations about the riot in his diary. He complained that American magistrates were hampered by the absence of a law comparable to England's Riot Act. In contrast to English law, public officials had to rest their authority on "a general common law authority to keep the peace and to make arrests and to use all necessary authority for this purpose." Common-law authority was, however, "very vague and the question always arises, what force was necessary." Fisher believed that the unprecedented level of violence occasioned by the riots changed American thinking about the legitimate use of force against the mob. One of the distinguishing features of the Kensington Riots was the prevalence of firearms. 


These are strange things for Philadelphia. We have never had anything like it before, but now that firearms have been once used and become familiar to the minds of the mob, we may expect to see them employed on all occasions, and our riots in future will assume a more dangerous character.


In Fisher's view, the widespread use of guns by the rioters was entirely unprecedented and had utterly transformed the way the law would have to address urban unrest in the future. After Kensington, "armed resistance was now a matter of common right and self defense."45


The transformation in legal thinking in the three decades that separated the Baltimore Riots and the Philadelphia riots was profound. While officials in Baltimore had been reluctant to use force to put down the mob, officials in Philadelphia not only brought the full force of the law down upon rioters, but they counseled individual citizens to arm themselves and assist the authorities. Francis Wharton, one of the most eminent legal authorities in the nation, devoted considerable space in his influential midcentury treatise on homicide to the legal obligations of citizens to assist authorities in suppressing mob violence. Wharton noted that "citizens have the right in extreme cases, when the municipal government is insufficient, to establish a preventive police, and, if it be necessary, take life in order to prevent crime." To illustrate this point, Wharton invoked the example of the Kensington Riots. He even included a jury charge delivered in one of the cases arising from the riots. The judge in that case instructed jurors that during times of public unrest and tumult, "citizens may, of their own authority, lawfully endeavor to suppress the riot, and for that purpose, may even arm themselves, and whatever is honestly done by them in the execution of that object will be supported and justified by the common law." Wharton's summary of the state of legal thinking after the Kensington Riots made it clear that the law now accepted the legitimacy of deadly force against mobs. Citizens had a legal obligation to come to the aid of magistrates.46


The breakdown of the traditional republican understanding of the legitimacy of the mob as a genuine expression of the will of the people is also evidenced in the decision of a number of cities to develop professional police forces in the late 1840s and early 1850s. The decision to abandon the more informal system of constables and urban watches and turn to uniformed police marked another important break with the traditional republican understanding of the mob as a legitimate expression of the popular will. Initially there was some reluctance to equip these new police forces with firearms, but this hesitancy soon gave way. Indeed, it seemed fitting that one of the last products introduced by Samuel Colt before his death in 1862 was the New Model Police Revolver.47


THE RIGHT TO BEAR ARMS AT MIDCENTURY


At midcentury American thinking about the right of self-defense, the right to bear arms, and the constitutional function of the militia was more unsettled than at any point in the previous hundred years. One measure of the depth of these divisions is provided by a popular mid-century debating manual, whose list of possible topics for discussion captured the unsettled nature of American thinking on many of these issues. The author of American Debater posed the following question: "Is resistance to the constituted authorities in the State ever justified?" Had one been able to gather Robert Turnbull, Thomas Dorr, Lysander Spooner, and Joseph Story together in a single room to debate this momentous issue, there would have been little common ground among any of the speakers. While there can be little doubt that each of these constitutional thinkers would have enthusiastically endorsed the idea that the Second Amendment was the palladium of liberty there would be no consensus on the exact meaning of this provision of the Bill of Rights. Turnbull would have viewed a right of armed resistance as a legitimate constitutional option, one properly exercised by the individual states. Thomas Dorr also believed in a right of armed resistance, but his conception of this right looked to the authority of popular conventions. Lysander Spooner's radical abolitionist vision rejected both of these collective understandings of the Second Amendment's revolutionary character. For Spooner the existence of a constitutional right of armed resistance was indisputable. The agent of this revolutionary theory was not the states or popular conventions, but individuals. For conservative nationalists such as Joseph Story there simply was no constitutional right of resistance. Unfortunately for those embracing a right of armed resistance, it was the conservative Story who sat on the U.S. Supreme Court.48


The issue of self-defense also provided the American Debater with material suitable for spirited academic disputation. Despite the fact that American law had moved toward a more aggressive view of the right of self-defense, it was still possible at midcentury to frame a debate around the question: "Has a man a right to kill another in self-defense?" Even the seemingly sacrosanct notion that the militia was superior to a standing army had come to be a subject worthy of forensic discussion. While it would have been hard to imagine any eighteenth-century debating manual asking "Would a large standing army be conducive to our country's prosperity?" by the middle of the nineteenth century it was at least possible to offer up this proposition for consideration.49


Nineteenth-century Americans were forced to grapple with a host of problems that the framers of the Second Amendment had never anticipated. For many, the Second Amendment continued to represent the ultimate check on tyranny. How this vital checking function might be implemented continued to be a source of division. The revolutionary potential of the militia and the Second Amendment would be sorely tested in the decades to come.

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TO  BE  CONTINUED