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Q U I C K   L I N K S

To learn more about the engraver of the 17th-century head-piece pictured to the left, see the IN BRIEF biography for Wenceslaus Hollar.

This detailed study of our founders’ gun laws (pre- and post-Second Amendment) is the first entry in She-philosopher.​com’s new series on the 17th-century historical context for Anglo-American gun culture.
  Forthcoming essays in the series will cover such topics as the first automatic weapons (and other fantastical military hardware) from a late-15th-century military treatise ... the character question (“good guys with guns”) ... the random gunshot that almost brought down Elizabeth I (in 1579) ... one of the first drive-by shootings (in 1682) ... women warriors (“Feminine Cavaliers”) in fact and fantasy ... and militarized recipes for “Triumphs and Trophies in Cookery” (pies filled with live frogs and birds, and ships with cannon that fire, with the food serving up table-top drama “which makes the Ladies to skip and shreek” and “will cause much delight and pleasure to the whole company” during holiday banquets in noble households, such as that in which Margaret Cavendish was raised).

Elizabeth I had a profound influence on military men who established English Protestant colonies in America. Click/tap here to view a facsimile of a popular 17th-century print glorifying Elizabeth’s military leadership — the Elizabethan photo op that galvanized an empire.
  Cf. Donald Trump’s postmodernist performance as a “wartime president” which has dishonored, and threatens to destroy, Elizabeth’s Anglo-American legacy.

Rep. Matt Gaetz’s (R-Fla.) support for rogue militias and armed insurrection is, as Lisa Desjardins pointed out on 5/28/2021, becoming mainstream, especially within the Republican party.
  During the 2020 election, Rep. Darrell Issa (R-Calif.), battling Democrat Ammar Campa-Najjar for California’s 50th District U.S. House seat, asserted: “A militia in fact is a personal right under the Second Amendment and your right to defend your community and to take charge, if your government fails you, or to take arms if your government turns on you; those are your constitutional rights” (qtd. in “Local Democrats Angered by 50th District Candidate Campa-Najjar’s Interview with Far-Right Group” by Matt Hoffman and David Washburn [posted to the KPBS website, 10/11/2020]; see also “Congressional Candidates Pandering to the Fringe” by columnist Michael Smolens [San Diego Union-Tribune, 10/18/2020, pp. B1 and B12]).
  Such anachronistic, but popular, misconceptions of the Second Amendment have great appeal for constituencies with legitimate grievances when “government fails you,” or “government turns on you,” and our First Amendment right to petition government for a redress of grievances goes nowhere.
  Law enforcement personnel, like Wilkinson County (Georgia) sheriff’s deputy Cody Griggers, who take an oath of public service, then go rogue — using the power of their office to terrorize others of whom they disapprove or dislike; to illegally traffic weapons (“At one point, Griggers offered to provide Zamudio with law enforcement-only 9 mm ammunition and explosives”); and to enable antigovernment militias (“I’m the guy on the inside. I can figure out if my dept is siding with the enemy or not, and from there I’m either positioned to maximize damage by attacking from the inside, or coordinate efforts to safely identify ourselves as patriots in order to maximize weapons pointed towards the enemy and minimize friendly fire,” bragged Griggers on social media) — are not simply the proverbial “bad apple,” but have garnered mainstream support (see “S.D. Arrest Leads FBI to Extremist Group and Ga. Deputy: Investigation began with online posts by member of Defend East County: Probe offers window into militia movement” by Andrew Dyer and Kristina Davis [San Diego Union-Tribune, 5/2/2021, pp. A1 and A21]).
  Cf. ongoing revelations about San Diego deputy sheriffs also using gun trafficking as a means to obtaining political power.

For more about the 21st-century rise of antigovernment militias, see: “The Armies of the Right: Though Trump Is Gone, the Legions of Far-Right Extremists He Inspired Will Continue Marching On” by Luis Feliz Leon (The Progressive, vol. 85, no. 2, April/May 2021, pp. 27–30).
  And see: “After the Storm: The U.S. Far Right Is at a Crossroads” by Matthew N. Lyons (The Progressive, vol. 85, no. 2, April/May 2021, pp. 23–26).

Click/tap here to open an illustrated second-window aside with a note on this country’s earliest representative institution, the Virginia House of Burgesses, along with little-known founding principles of universal suffrage and of full representation in 1620s–1650s Virginia. LAST UPDATED: 5/26/2023, including new content re. the human trafficking of white persons in 1620s Virginia and in 1650s Virginia.
  Includes the text of Anglo-America’s first Aliens Restriction Act (1632), allowing the Virginia government to imprison and deport French inhabitants brought to the colony on the 17th-century equivalent of work visas.
  Also includes the text of one of Anglo-America’s first statutes (1631) mandating a census of all inhabitants and their material goods, including guns, ammunition, and other weaponry. The census has been a cornerstone of Anglo-American democracy since the founding of this country in the early 17th century. The original U.S. census — providing a snapshot of the provincial population, assets, and GDP — was an annual (instead of decennial) count, to be conducted on the 1st of December each year.

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ADDED 7/24/2020 (and last modified 11/27/2022): an endnote with my historian’s take on then President Trump’s misguided Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census (issued 21 July 2020), wherein I argue that the founding “principles of representative democracy underpinning our system of Government” are not what former President Trump thinks they are. Specifically, I cite 17th-century Anglo-American laws proving (1) the founders’ original intent that “all persons inhabitting in this collonie that are freemen [are] to have their votes in the election of” representatives (this was mandated in a 1658 statute); (2) that constitutional values concerning representation were driven by the republican principle, no taxation without representation, as in the preamble “we conceive it something hard and unagreeable to reason that any persons shall pay equall taxes and yet have no votes in elections” (this was declared in a 1656 statute); and (3) that setting things up to promote convenience in voting, along with universal suffrage for all taxpaying residents, was also a founding principle.
  As such, former President Trump’s crusade against “Universal Mail-In Voting” — which he claims will be “INACCURATE & FRAUDULENT,” despite 21st-century safeguards, and expert projections that “the risk of ballot fraud [is] an infinitesimal 0.00004% to 0.0009%” (Calvin Woodward, “AP FACT CHECK: Trump’s Election Agitations and Distortions,” n. pag.) — is a postmodern obsession, not shared by Anglo-America’s founders, and very much at odds with the founding “principles of representative democracy underpinning our system of Government.”

NOTA BENE  A detailed discussion of the first published debate concerning gun control in the United States is available at our sister project known as Roses. See that website’s digital reissue (2014) of Thomas Tryon’s anti-gun polemic, The Planter’s Speech to his Neighbours & Country-Men of Pennsylvania, East & West-Jersey ... (1684).
  A prefatory discussion of Tryon’s Christian contribution to the gun culture debate in America is available at the Roses website’s What’s Blooming news page (entry dated 5/9/2014).
  And see also that website’s news blog entry posted on 3/26/2018 for more historical facts about guns & gun culture in 17th-century Virginia.

Thomas Tryon’s early-modern Christian perspective on the psychology of gun violence in The Planter’s Speech to his Neighbours & Country-Men of Pennsylvania, East & West-Jersey ... (1684) is complemented by a PBS NewsHour segment with an updated assessment of gun culture in the postmodern U.S.: “A Look at the Rise of the AR-15 in America after 8 Killed at Texas Outlet Mall” (aired 5/8/2023).
  SUMMARY: “AR-15s, like the one used to kill eight people at a shopping mall in Allen, Texas, have become more popular around the country. The rifles have been involved in ten of the country’s 17 deadliest mass shootings. The Washington Post spent months examining the rise of the AR-15 in America and the politics and culture surrounding it. Geoff Bennett discussed that series with reporter Todd Frankel.”

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The Christian mystic and early practitioner of holistic medicine, Thomas Tryon (1634–1703), was the first Anglo-American to delve into the psychosocial consequences of gun violence as a public health issue. See his anti-gun polemic, The Planter’s Speech to his Neighbours & Country-Men of Pennsylvania, East & West-Jersey, and to All Such as Have Transported Themselves into New-Colonies for the Sake of a Quiet Retired Life, with its unique focus on how America’s gun culture affected the well-being of children (1st edn., 1684; digital reissue 2014, with my separate illustrated editor’s Introduction here).
  Over three centuries later, Tryon’s public-health approach to gun violence is gaining favor with the medical community.
  PBS NewsHour Weekend reports that “Since 2020, guns have been the leading cause of death for children in America. While many tragically lose their lives, child survivors of gun violence can endure a lifetime of physical and mental health challenges.” “Firearm-related injuries among children have been on the rise, with nearly 16 in 100,000 children experiencing gun violence, according to the latest data.” Of note, “A new study from the American Academy of Pediatrics points to the urgent need for connecting children to mental health services following a firearm injury.” (Ali Rogin, “Many Children Who Survive Gun Violence Face Barriers to Mental Health Care”; first aired 6/17/2023).
  Unfortunately, the recommended mental health services are not readily available to most child survivors of gun violence. “[O]ne reason is that there are significant workforce shortages of mental health professionals in the U.S. but particularly in high poverty areas in those communities where most firearm injuries occur.  ¶   And this is also compounded by limited reimbursement rates for mental health services, particularly those offered by Medicaid relative to private health insurance. And the reason that we focus study on Medicaid enrolled youth is that most youth in the U.S. who sustain firearm injuries are enrolled in Medicaid.” (Dr. Jennifer Hoffmann, a pediatric emergency medicine physician at Lurie Children’s Hospital of Chicago and a lead author of the new study, n. pag.)
  When asked “And so what does that mean in terms of what policymakers can do? What would you like to see change?” Dr. Hoffmann replied: “So, first of all, I think that policymakers should make more substantial investments to improving access to mental health services for children. And this includes meeting children where they are. Investing in school based mental health services. Also telehealth mental health services that can connect to children in communities that don’t have an in-person mental health provider. Also, policymakers need to increase research funding to address and prevent firearm injuries by applying a public health approach. We know that research on firearm injuries is substantially underfunded relative to the morbidity and mortality burden.” (n. pag.)

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It’s not just the medical community that is increasingly attuned to the crisis in children’s public health resulting from our permissive gun culture. A growing number of women, across the partisan divide, want real (i.e., effective) gun control to protect this nation’s children from growing gun violence. See the report in “When It Comes to Guns, Republican Women Don’t Always Agree with Republican Men: As gun violence grows in our country, GOP women seem to be thinking more like Democratic women” by Lauren Leader (posted to POLITICO, 6/11/2023).
  “For years traditional women’s issues in American politics have been defined by paid leave, equal pay, childcare, abortion and education. But our poll indicates that concerns about gun violence are galvanizing women on the left and center and establishing common ground with some conservative women. According to our poll, guns have become the single most important issue for Democratic women. And even meaningful numbers of Republican women agree with women on the left and middle about the right legislative solutions to pass.” (Lauren Leader, n. pag.)
  It is heartening to learn that a growing number of women are sick of the fake representation we confront, in blue and red states. “Well over half of women (55 percent) feel that the political leaders in their state are not listening to them on guns. This was remarkably consistent across party lines — just 13 percent of Republican women and 14 percent independent and Democratic women said politicians are listening to them on the issue. Among young women, only 9 percent think politicians listen to them a lot on guns.  ¶   What has emerged is a picture of American women united on the need for basic laws to protect their families, and especially children from terrible gun tragedies that continue daily. In short, women — including Republican women — want something done, and they are willing to hold leaders accountable for their actions, or inaction, as is far too often the case.  ¶   With basic safety and the survival of children on the line, it’s no wonder so many women agree. Gun violence is personal to them — they want to be heard and they want something done. May elected leaders in both parties take note: It’s a matter of life and death.” (Lauren Leader, n. pag.)
  In support of the majority of U.S. women headed back to the future on this issue: what we are really asking for is a return to this country’s founding, constitutional principles: “such rights as will best maintain peace and good order, and most effectually secure happiness and liberty to the people” (to quote Maryland’s constitutional convention, meeting on 17 August 1776). In 1905, the eminent constitutional scholar, Emlin McClain, reiterated this founding principle when he observed that many “so-called rights” are “in reality duties and privileges imposed and granted for the public good and not for individual benefit” (Emlin McClain, Constitutional Law in the United States, revised edn., 1910 [rpt. 1916], 284).
  As I have evidenced over and over at this website, government that is attentive to the “public peace and happiness” ends up being consistent “with the Nation’s historical tradition of firearm regulation” which, until recently, emphasized the founding constitutional principles of “domestic tranquillity,” “the common defence,” and “the general welfare” (Preamble to the U.S. Constitution).
  As for this country’s metastasizing scourge of fake representation (exemplified by gerrymandered state legislatures pushing a factional and/or sectarian agenda onto the people of their state), this — as well as the newfangled constitutional right of the multitude to bear arms being pushed by unrepresentative state governments and the courts — is inconsistent with our constitutionally-mandated “republican form of government” (Art. IV, § 4 of the U.S. Constitution).
  According to West New Jersey’s celebrated Concessions and Agreements of the Proprietors, Freeholders and Inhabitants of the Province of West New-Jersey, in America (3 March 1676–77), “The first duty of a member [assemblymember] was to present the grievances and recommendations of his constituents; should he fail to carry out their instructions he could be challenged from the floor by the others from his tenth.” (J. E. Pomfret, The Province of West New Jersey, 1609–1702: a History of the Origins of an American Colony, 96)
  Such genuine representation is definitely a thing of the past. Over 3 centuries on, state assemblymembers focus on their own partisan legislative agendas and ignore constituent “grievances and recommendations” with impunity, as my experience in the blue state of California, now under the absolute control of the Democratic Party, makes clear.
  When a majority of us feel that our political leaders have stopped listening to us — a situation in which I myself am mired, as of 2015 — our society is in deep trouble. A republican government which is representative in name only begets political violence, and will fall eventually.
  Even the autocratic Stuarts who oversaw this country’s founding in the 17th century — Charles I (r. 1625–1641), Charles II (r. 1660–1685), James II (r. 1685–1688) — understood the importance of securing their vassals’ historical right to petition government for a redress of grievances. This is a cornerstone of the social contract.

For more on the history of guns in the U.S., see the PBS NewsHour feature, “Firearms Museum Takes Aim at Understanding History, Culture of Guns” (first aired 12/16/2019).
  SUMMARY: “Wyoming is the least populous state in the U.S. but ranks near the top in per capita gun ownership. It’s also home to the nation’s most comprehensive collection of historical firearms. Jeffrey Brown reports from Cody, where a renovated firearms museum traces the role guns have played in shaping American history and urges visitors to come to their own conclusions about their place in society today.”

The proud display of guns at gun shows (vs. museums) has catalyzed the gun-control debate in California.
  A new state law, which takes effect in 2021, bans gun and ammunition sales at state-owned venues, such as the Del Mar Fairgrounds in north San Diego County, where the Crossroads of the West Gun Show has been a biannual attraction for decades. The gun show event was again held in December 2019, after being suspended in 2018, but its future is uncertain, pending litigation, as reported by Morgan Cook in “Backers, Foes Rally as Gun Show Returns to Del Mar Fairground” (San Diego Union-Tribune, 12/15/2019, p. A3).
  Gun show supporters — “sane, trained, law-abiding gun owners who want to assemble, want to get together and learn, and meet with each other and transact business legally and use things responsibly” — contend that gun shows are good family entertainment, and “it’s important that people have access to meet gun enthusiasts, to have a place to go and meet and learn best practices and see some of the new equipment that is out. It’s a lot of fun.”
  Gun show opponents counter that “easy access to guns” should not “be advertised as family-friendly because women and children are so often victims of domestic violence homicides, the rate of which recent research has tied to gun ownership.” Nor is “a distaste for gun-enthusiast culture” driving local opposition: “This isn’t about culture [...] This is about the state being involved in promoting and profiting from the sale of firearms and ammunition on state-owned property. The government does not belong in this business.” (M. Cook, A3)

Gun show bans and other gun-control legislation enacted by the states are now being challenged at the local level, with the rise of “Second Amendment Sanctuaries.” (This is a case of compounding ironies: as I argue here, a sovereign state’s prerogative “to keep and bear arms” is what the original Second Amendment was all about.)
  The Second Amendment Sanctuary movement pits local elected representatives (sheriffs) against statewide elected representatives (governor and legislators) in a contest over state laws regulating guns (which supposedly violate the Constitution), giving sanctuary sheriffs the right to exercise “professional discretion” in choosing which state laws to enforce. (To reiterate, in pre- and post-revolutionary Anglo-America, any such rebellion against the provincial government would have been considered sedition, and put down accordingly.)
  Dueling op-eds over 21st-century “Second Amendment Sanctuaries” in California, Colorado, Illinois, Rhode Island, Texas and elsewhere were posted to the InsideSources.​com website on 12/18/2019:
  1. “POINT: Second Amendment Sanctuaries Reflect the Will of People Who Value the Constitution” by Teresa Mull.
  2. “COUNTERPOINT: Second Amendment Sanctuaries Are a Legal Fiction that Jeopardize Public Safety” by Chelsea Parsons.

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For more on local pushback against state gun-control laws — “including universal background checks, assault weapon bans and red flag laws that would allow authorities to temporarily take guns away from people deemed dangerous to themselves or others” — in 21st-century Virginia, see “Second Amendment Sanctuary Push Aims to Defy New Gun Laws” by Denise Lavoie of the Associated Press (posted to the AP website, 12/21/2019).
  In Virginia, which happens to be home to the National Rifle Association’s headquarters, “The counties are saying, this stuff is unconstitutional. We don’t want it, we don’t want to enforce it, and in most cases, we won’t enforce it,” according to Philip Van Cleave, president of the Virginia Citizens Defense League. And at least “One Virginia sheriff has vowed to deputize thousands of county residents ‘to protect their constitutional right to own firearms.’” (D. Lavoie, n. pag.)
  But as I have documented elsewhere on this page, the state legislature’s right to regulate firearms, in addition to arming and disarming individuals, dates to the founding of this country (scil., the first militia law passed by the Virginia House of Burgesses on 5 March 1623–4).
  Moreover, the sovereign sheriff is another postmodern invention with no historical analogue. Historically, in Virginia, sheriffs were strictly regulated by the state legislature from at least 1652 (e.g., no person could hold the office of sheriff or “under Sherriffe” for more than one year successively), and penalties were prescribed for abuses of the office (along with other profitable & powerful public offices, including clerk of court, escheator, surveyor, and collector). The legislature micromanaged all aspects of the sheriff’s job, including when arrests could be made (not on the militia’s muster days or on the Sabbath): “Whereas it hath been frequent practice of Sherriffes officers for theire owne Ease, and Bennefitt to Repayre to Churches on Sabbath dayes, and to other Pubblick meetings, on purpose to serve Executions, Warrants, and other Writts, by which meanes manye times these Dutyes are neglected by such whoe are in Danger of Arrests, It is therefore Enacted, and ordered by this grand Assemblye that noe officer, nor officers shall from henceforth Execute any Writt, or Warrant uppon any person, or persons in time of Exercise, or muster for that day, nor on the Sabbath day” (Act the 2nd / Noe Arrests on Sabbaths nor Musters Dayes, as enacted by Virginia’s Grand Assembly in 1651, and reenacted in the Revisal of 1658). Given the sheriff’s many opportunities for corruption, the legislature, while under republican rule during the Interregnum, mandated transparency and accountability: that “the said Sherriffe of Every Countye Respectivelye, doe bring in and yeald upp at Everye march quarter Court yearlye to the governor and Councell, a just account of all Publick Commands Committed to theire Charge, [...] and Alsoe that all Sherriffes doe give good Caution to the Countye Court for the performance of the trust Committed unto them” (Act the 38th Concerninge Sherriffes to Serve but One Yeare, as enacted by Virginia’s Grand Assembly at 26 April 1652 session).
  Of note, an even stricter regulation of the activities of public officers was initiated by the reform-oriented Grand Assembly of June 1676, misleadingly dubbed “Bacon’s Assembly” because it was “packt” with radical republicans, and convened during Bacon’s Rebellion (which began in May 1676, with Bacon’s unauthorized Occaneechee campaign). But this Assembly’s acts proved to be in line with the will of the people (rising up against that era’s entrenched elites), and were repassed in substantially the same form in the assembly of February 1677 following the rebellion.
  The 17th-century An Act for the Regulateing of Officers and Offices, starting with sheriff, opened: “WHEREAS divers complaints have bin made throughout the country of the abuses and other ill management and administration of divers offices, and hath bin represented to this assembly, that redresse may be had therein, in order whereunto, Bee it enacted by the, governour, councell and burgesses of this grand assembly, and by the authority of the same, that noe person whatsoever within this country shall exercize, hold and enjoy the office of sherriffe or under sherriffe more then one yeare successively, and if any person or persons whatsoever within this country from and after the first day of May next, shall accept the said office of sherriff or under sherriff, and shall execute, hold or enjoy the same by him or themselves, or by his or their deputies contrary to the true intent and meaninge shall be ffined twenty thousand pounds of tobacco to the use of the countie where he so officiates, any lawe, custome or usage to the contrary notwithstanding, and that according to a former act of assembly the sherriffs place be enjoyed by the severall commissioners of the respective countyes successively; And bee it further enacted by the authoritie aforesaid, that noe person or persons whatsoever shall hold or enjoy any two of these offices hereafter named at one and the same time, being offices of profitt, vizt. the offices of sherriffs, clerke of courts, surveyor and escheator, from and after the first day of Aprill next ensueing, under the penaltie of five hundred pounds of tobacco everie week, hee or they shall hold and enjoy the same contrary to the true intent and meaning hereof....” (Act V, passed by the Virginia state legislature, 5 June 1676)

Another historic decision: “9th Circuit Ends California Ban on High-Capacity Gun Magazines” by Don Thompson of The Associated Press (posted to the PBS NewsHour website, 8/14/2020).
  “Aside from the magazine ban itself, [California Rifle & Pistol Association attorney Chuck] Michel and the unaffiliated Second Amendment Foundation said the case has legal implications for other gun restrictions should it reach the justices [of the Supreme Court] because it could allow the court to clarify an obscure legal debate over what standard of review should be used.  ¶   ‘The Supreme Court seems inclined to do away with the complicated subjective tests that many courts have wrongly applied in Second Amendment cases, in favor of a clearer more objective “originalist” approach that considers the text, history and tradition of a law to determine what infringements might be tolerated,’ Michel said in an email.” (D. Thompson, n. pag.)
  As I have argued here, the individual right to keep and bear arms, as popularized by the NRA, SCOTUS, etc. is a postmodern invention, and nothing to do with the original intent of militia laws dating back to 1619, when the Virginia House of Burgesses first made it a crime, punishable by death, to sell or give guns and ammunition to Native Americans (of note, subsequent statutes would allow the sale of guns — often part of the payment required for coveted tribal lands — to the indigenous inhabitants, but would afterwards prohibit the sale of shot and powder, and also any gun repairs). So “the text, history and tradition of” militia law in this country is not the simple & straightforward “right to armed self-defense” that many, including appellate Judge Kenneth Lee, seem to think.

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And see also “Court Strikes Ban on Gun Magazines: Law on high-capacity components ‘runs afoul of Second Amendment’” by Teri Figueroa (San Diego Union-Tribune, 8/15/2020, pp. A1 and A8). As Figueroa here explains, the lawsuit at the heart of Judge Lee’s 66-page decision was filed by five San Diego County residents who contend that California’s ban on high-capacity magazines infringes on their constitutional right to bear arms. “U.S. District Judge Roger Benitez sided with the plaintiffs and blocked enforcement. California appealed. Friday’s [federal appeals court] ruling upholds Benitez’s decision.” (T. Figueroa, A8)
  Of note, “Gov. Gavin Newsom — who as lieutenant governor crafted Prop. 63 in response to mass shootings — said during his coronavirus briefing Friday [8/14/2020] that he had not read the new decision, but he said the state law was sound.  ¶   ‘I think it was right and ... the overwhelming majority of Californians agreed’ when they voted in favor of the initiative, he said.  ¶   ‘I will remind everybody a gun has never killed anybody unless the gun is used as a blunt instrument,’ Newsom said. ‘A gun requires a dangerous and deadly component, and that is a bullet, ammunition.’  ¶   California, he said, has ‘long advanced efforts to focus not just on guns, but to focus on keeping those dangerous components out of the hands of people that should otherwise not be afforded that fundamental privilege-slash-right.’  ¶   Prop. 63 passed with 63.1 percent of the vote. The ‘yes’ votes in San Diego County tallied 61.5 percent. Approval in Orange County came in at 59.5 percent, and Los Angeles County backed it with 72 percent of the vote.” (T. Figueroa, A8)
  I would argue that Governor Newsom’s framing of ready access to ammunition as a “fundamental privilege-slash-right” is historically correct. As I believe I have proven here, from the founding of this country in 1607, access to guns and ammunition was considered a privilege (or a duty), not a right — and certainly not an inalienable right as many today claim.

The debate over Second Amendment gun rights amped up on 4 June 2021 with San Diego federal Judge Roger Benitez’s 94-page ruling which overturned California’s 30-year-old ban on assault weapons, declaring the state’s ban unconstitutional, and comparing the AR-15 semiautomatic rifle to a Swiss Army knife, “good for both home and battle.”
  For details, see “Judge Rejects Another State Ban: State vows to fight ruling on assault weapon restrictions” by Greg Moran (San Diego Union-Tribune, 6/6/2021, pp. A1 and A10), retitled “San Diego Federal Judge Wipes Out a Key Pillar of State Gun Regulations, Again: It is the third time since 2019 that U.S. District Judge Roger Benitez has struck down state gun laws” for online posting. And for a slightly different framing, see “Assault Weapons Ruling Prompts Outrage: Gun control backers fault judge’s reasoning in overturning state’s 30-year-old ban” by Alex Wigglesworth and Thomas Curwen (Los Angeles Times, 6/6/2021, pp. A1 and A10), retitled “After Judge Overturns California Assault Weapons Ban, State Officials Vow to Fight Back” for online posting.
  In the opinion of Judge Benitez, “The Second Amendment protects any law-abiding citizen’s right to choose to be armed to defend himself, his family, and his home[.] At the same time, the Second Amendment protects a citizen’s right to keep and bear arms to use should the militia be needed to fight against invaders, terrorists, and tyrants. The Second Amendment is about America’s freedom: the freedom to protect oneself, family, home, and homeland. California’s assault weapon ban disrespects that freedom.” (qtd. in G. Moran, A10)
  “In Friday’s ruling Benitez again drew unusual comparisons outside of the usual case law reference, though there were many of those, too. In addition to comparing assault-style weapons to the Swiss Army knife he also drew a comparison to the sales of the Ford F-150 pickup trucks to buttress his point that the assault rifles are widely popular and not weapons used by a relative handful.” (G. Moran, A10)
  A “local plaintiff in the case who is the chief executive of the San Diego County Gun Owners group welcomed the ruling. ‘I am happy that the judge agreed that these firearms are not exotic or unusual, and that my right to self defense is being violated by this ban,’ said Wendy Chou Hauffen. ‘These commonly owned rifles function just like any other firearm.’” (G. Moran, A10)
  Using the popularity — or even utility — of a particular gun for self-defense to prove a constitutional right to keep and bear arms is a postmodern invention, with no basis in “the text, history and tradition of” militia law in this country.
  The Second Amendment was originally about the struggle over royal prerogative. As the 1st duke of Newcastle advised Charles II, just prior to his restoration in 1660, the “Militia [...] Is your Ma[jes]ties Undoubted prerogative”: “Therfor I woulde have your Ma[jes]tie have all the Armes, & Amunitiann Inn your owne handes [...] firste by [...] disarminge off themm totalye, Inn all kindes, no more Citeye Captins or Collonnells, Artilerye yarde or Militarye yarde; & a penaltye Upponn anye thatt keepes Armes, levinge them nothinge butt their severall watches, Inn their severall wardes, & parishes to keepe the streetes Inn order & no more”; second, “& thenn by Arminge your selfe [...] to over Awe them & to keepe them In order” (William Cavendish, “For the Militia,” Section 1 of his Letter to Charles II, a scribal publication written c.1650s). Taking Newcastle’s advice, Charles II became the first monarch to maintain field regiments in peacetime (before 1661, kings of England had raised temporary armies in time of war, which were disbanded on the conclusion of hostilities).
  Giving to individual provinces within the United States a constitutional right to keep “a well regulated militia” (what Newcastle called “traynde bandes In Everye Countye”) struck at the heart of royal prerogative. And this was the original intent of the Second Amendment — to ensure that each commonwealth (“a free state”) had the prerogative to secure itself “against invasions and insurrections.”
  The 18th-century transference (the Second Amendment was adopted on 15 December 1791), to individual states, of the king’s prerogative to keep what Newcastle called a “well orderde forse” (militia) has no bearing on Wendy Chou Hauffen’s 21st-century “right to self defense” using exotic, unusual, or commonly owned firearms. To claim that it does, is anachronistic.
  As I have argued at length here, the keeping of arms by private individuals was, from Anglo-America’s founding in 1607, controlled by provincial laws, and provincial governments have always had the right to arm and disarm the multitude according to those laws.

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As expected, California has appealed U.S. District Judge Roger Benitez’s 6/4/2021 decision, which critics (such as Governor Gavin Newsom) believe is rooted in ideology, not science and public health. See “State Appeals Assault Weapons Ruling: Citing public safety, attorney general [Rob Bonta] seeks to reverse San Diego judge’s decision on three-decade-old ban” by Patrick McGreevy (San Diego Union-Tribune, 6/11/2021, pp. A1 and A6), retitled “California Appeals Judge’s Ruling that Overturned the State’s Assault Weapons Ban” for online posting.
  After filing his appeal, California State AG Bonta acknowledged that “The ban on assault weapons will not put an end to all gun violence, but it is one important tool the state has to protect the safety of Californians while also respecting the rights of law-abiding residents who choose to possess firearms” (P. McGreevy, A6).
  For his part, Judge Benitez “disputed the argument of state officials that the assault weapons ban has reduced gun violence. He said the number of mass shootings is about the same as it was before the ban.  ¶   ‘The assault weapon ban has had no effect,’ Benitez wrote in his 94-page ruling. ‘California’s experiment is a failure.’  ¶   But state officials said there is evidence that the law has prevented gun deaths.  ¶   On Thursday [6/10/2021], Bonta cited a study by the Everytown for Gun Safety Support Fund, which found that, for the last 12 years, the use of an assault weapon in a mass shooting has led to ‘six times as many people shot per incident than when there was no assault weapon.’” (P. McGreevy, n. pag.)
  Ironically, 21st-century gun rights advocates associated with the case make a mockery of this country’s founding debate over royal prerogative. E.g., Sam Paredes, executive director of Gun Owners of California, claims that Governor Newsom — “who as lieutenant governor wrote Proposition 63, a 2016 initiative approved by voters to toughen state law with measures including a ban on the possession of large-capacity ammunition magazines” (P. McGreevy, A6) — forgets “he is governor and not king”; similarly, the plaintiffs, in defending Benitez’s “legally- and historically-correct decision,” are calling California’s assault weapons ban “tyrannical.”
  In fact, Governor Newsom’s unwavering support for gun reforms “applicable to the local and other circumstances of the province” (SCOTUS Associate Justice Samuel Chase [1741–1811], as qtd. in William Kilty, A Report of All Such English Statutes as Existed at the Time of the First Emigration of the People of Maryland ..., Annapolis, 1811, p. vi) is in keeping with this country’s historical tradition of firearm regulation, dating back to our 17th-century founding, when the General Assembly of Virginia passed Anglo-America’s first firearm regulation on 3 August 1619, followed by Anglo-America’s first militia law on 5 March 1623-4, which evolved, over a century later, into the revolutionary assertion of states’ rights against kingly prerogative.

“Advocates Turning to Courts More Over Gun Rights: San Diego has become major front in legal battle against gun regulations,” by Greg Moran (San Diego Union-Tribune, 7/4/2021, pp. A1 and A14).
  This article summarizes ongoing efforts by gun rights groups intent on postmodernizing the Second Amendment — turning constitutional language protecting the prerogative of every commonwealth (“a free state”) in the union to secure itself “against invasions and insurrections” by keeping “a well regulated militia” (previously a royal prerogative) into an individual right to possess firearms for self-defense and other purposes.
  “With some of the strictest gun-control laws in the country, California has become a focus of these legal battles. And while lawsuits have been filed in each of the state’s four federal court districts, San Diego has become a major front in the legal battle.” (Greg Moran, A14)
  Of note, “The legal battles are taking place against a backdrop of polls showing support among voters for some stronger gun laws, such as universal background checks, along with a surge in gun buying. Last week, [California Attorney General Rob] Bonta reported a 65 percent increase in the sale of handguns in 2020 from 2019 in California.” (Greg Moran, A14)

A profile of the San Diego judge who is upending California gun laws: “This San Diego Judge Is Striking Down Gun Laws: In an era of fierce polarization, Judge Roger T. Benitez is an object of rage and adoration” by Laura J. Nelson and Kristina Davis (San Diego Union-Tribune, 8/8/2021, pp. A1 and A10).
  Described as a Cuban émigré (“sent to Florida as part of Operation Peter Pan, a covert U.S.-backed effort to evacuate children from Cuba”) who “has seen tyranny up close and personal,” Judge Benitez is known for “rhetorical flourishes, dramatic anecdotes and a tendency toward gun-related puns [which] seem at times designed to troll gun-safety advocates, who view his rulings and his expansive view of the Second Amendment with a mixture of outrage and alarm.” (L. J. Nelson and K. Davis, A10)
  I, too, disagree with any kind of stealthy postmodernization of the Second Amendment by an activist court, but I agree with Judge Benitez’s “insistence that government lawyers prove that gun-control measures actually work” (L. J. Nelson and K. Davis, A10). As I have argued elsewhere, I am tired of legislation we can’t properly evaluate — then revoke, revise, or reenact, as appropriate. But the demand for more data-driven policies and judgments applies to Judge Benitez, as well as to the lawyers who appear before him.
  “In an attempt to argue that an AR-15 being used in a mass shooting is an ‘infinitesimally rare event,’ Benitez wrote in June that ‘more people have died from the COVID-19 vaccine than mass shootings in California.’ The statement, with no citation, mirrors talking points — unproved — about vaccine fatalities that have circulated on Tucker Carlson’s Fox News show and other right-wing news outlets.
  “The Centers for Disease Control and Prevention has found no ‘causal link’ between vaccinations and deaths.” (L. J. Nelson and K. Davis, A10)

As of June 2022, the state of New York is battling a politicized SCOTUS over that state’s longstanding (since the 17th century) prerogative to arm and disarm particular persons. This historical prerogative was emphasized in 1905 by the respected constitutional scholar, judge, and legal educator, Emlin McClain, whose modern interpretation of the Second Amendment concluded: “... The state may also prohibit the carrying of arms by private individuals as an act imperilling the public peace and safety. In many states there are statutes making it a crime to carry concealed weapons, and such statutes are not regarded as unconstitutional.” (Emlin McClain, Constitutional Law in the United States, 1st edn., 1905, 311–312)
  Yet, on 6/23/2022, the U.S. Supreme Court overturned New York’s restrictive law on issuing concealed-carry permits. The ruling against New York’s concealed-carry law, known as New York State Rifle & Pistol Assn., Inc. v. Bruen, is available here.
  Presumably, SCOTUS’s reasoning herein concerning “this Nation’s historical tradition of firearm regulation” makes sense to legal professionals.
  But, to a historian like me — who, back in 2017, posted the full text of two of the colonial statutes deemed irrelevant to “restrictions on the public carry of handguns today” — the majority’s argument does not persuade.
  The tortured logic on display in pp. 39–41 of SCOTUS’s New York State Rifle & Pistol Assn., Inc. v. Bruen decision — wherein the court’s conservative wing dismisses East New Jersey’s “solitary statute” of 1686, “An Act Against Wearing Swords, &c.” (followed up in 1694 with “An Act Concerning Slaves, &c.”) as but “eight years of history in half a Colony roughly a century before the founding”; ergo, “sheds little light on how to properly interpret the Second Amendment” — is historical revisionism that would not withstand peer review, as I intend to show with my detailed historical analysis of the statutes, including subsequent 18th-century acts “against Carrying of Guns ... by Persons not Qualified,” which SCOTUS conveniently ignores.
  In sum: “the People” of New York is the latest casualty of an unchecked, activist Supreme Court which is radically revising the original public meaning of the Second Amendment to include “an individual right to keep and bear arms for self-defense.” Substituting the multitude for the people of New York State — “It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of ‘the people’ whom the Second Amendment protects.” (3) — SCOTUS’s New York State Rifle & Pistol Assn., Inc. v. Bruen decision rewrites history accordingly.
  So long as the court’s conservative wing maintains its supermajority, this will be what passes for constitutional law in the near future. But make no mistake: this postmodern revisioning of “the publick Liberty” (De Coetlogon, An Universal History of Arts and Sciences, 2 vols., 1745, 2.42) is but a pale imitation of the original.
  Some context for SCOTUS’s New York State Rifle & Pistol Assn., Inc. v. Bruen opinion:
  •  “Supreme Court Appears Likely to Void New York’s Gun Permit Law: The justices seem inclined to find that the right to keep and bear arms extends to carrying them outside the home” by Josh Gerstein (posted to POLITICO’s website, 11/3/2021).
  •  PBS NewsHour segment, “Supreme Court Mulls Limits of Second Amendment in New York Gun Law Case” (first aired, 11/3/2021).
  •  “New York Signs Stronger Gun-Control Measure into Law. Here’s What Will Change: The new laws will bolster existing ones and close what state leaders viewed as loopholes that included allowing the Buffalo shooter to slip through the state’s Red Flag statute” by Joseph Spector (posted to POLITICO’s website, 6/6/2022).
  •  “‘Frightful in its scope’: New York Lawmakers Scramble to Counteract SCOTUS Gun Ruling: ‘This decision isn’t just reckless. It’s reprehensible. It’s not what New Yorkers want,’ Gov. Kathy Hochul said” by Erin Durkin, Joseph Spector, Katelyn Cordero, Joe Anuta, Julian Shen-Berro and Max Jaeger (posted to POLITICO’s website, 6/23/2022).
  •  “Supreme Court Strikes Down New York Gun Law along Ideological Lines: The 6-3 decision is the latest in a series of moves by the increasingly conservative high court to adopt a muscular interpretation of the right to bear arms” by Josh Gerstein (posted to POLITICO’s website, 6/23/2022).
  •  “Albany Passes Strengthened Gun Laws in Wake of SCOTUS Ruling: The measure, intended to counteract the Supreme Court’s decision last week striking down a strict state gun law, strengthens permitting requirements and designates a slew of new gun-free zones” by Katelyn Cordero (posted to POLITICO’s website, 7/1/2022).
  •  “Supreme Court Decision Prompts Maryland Governor to Lower Gun License Barriers: His announcement comes after last month’s Supreme Court decision to strike down a similar provision in New York” by Ari Hawkins (posted to POLITICO’s website, 7/5/2022).
  •  “The Supreme Court Knocked Back Blue States on Gun Restrictions. They’re Seeing How Far They Can Step Forward: Democrats moved swiftly to blunt a ruling opening up concealed carry, previewing years of struggle” by Jeremy B. White and Katelyn Cordero (posted to POLITICO’s website, 7/8/2022).
 
That a politicized Supreme Court’s corruption of the historical record is now on the verge of being institutionalized is alarming, indeed.
  According to White and Cordero, “The legal fallout could be far broader than concealed-carry regulations. Jubilant Second Amendment advocates said the Supreme Court’s decision should revive or spur challenges to a range of other restrictions, pointing to the decision’s expansive new test that any regulations are consistent with ‘the historical tradition that delimits the outer bounds of the right to keep and bear arms.’  ¶   ‘I don’t think that any restrictions on the peaceable possession of firearms should survive this test if it’s applied faithfully,’ said Matt Larosiere, policy counsel for the Firearms Policy Coalition. ‘Certainly any restrictions on the simple, peaceable possession of a firearm are clearly suspect now.’ So are restrictions on assault weapons and high-capacity magazines, he added, and ‘quite likely the handgun roster.’” (J. B. White and K. Cordero, n. pag.)
  “‘The impact of the Second Amendment ruling [New York State Rifle & Pistol Assn., Inc. v. Bruen] will be most acutely felt in the handful of blue states that have continued to innovate in gun regulation.’” (J. B. White and K. Cordero, n. pag.)
  Where are the checks and balances on an activist Supreme Court hell-bent on enshrining so much “ignorance or misinformation” (The Inconveniencies that Have Happened to Some Persons which Have Transported Themselves from England to Virginia; Without Provisions Necessary to Sustaine Themselves ..., 1622, n. pag.) about Anglo-America’s historical tradition of firearm regulation as constitutional law?
 
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SCOTUS’s postmodern corruption of the historical record raises new questions about judicial supremacy when it comes to the matter of constitutional hermeneutics. According to Brad Snyder in The Supreme Court Has Too Much Power and Liberals Are to Blame: The idea that the court has ultimate say on constitutional matters didn’t arise with modern conservatives. You can thank the Warren Court” (posted to POLITICO’s website, 7/27/2022), “The Supreme Court has usurped the power of the elected branches to interpret the Constitution and to pass laws on behalf of the people themselves — the foundational principle of American representative democracy.” (n. pag.)
  Snyder believes “It is not too late to put the genie of judicial supremacy back in the bottle and to return policymaking and constitutional enforcement where it belongs – with the American people and their elected representatives.” And he suggests systemic reforms that go well beyond the usual solutions proffered by the left & the right: “Many people on the left have focused on increasing the number of Supreme Court justices. Liberal and conservative legal scholars have endorsed limiting their life tenure to unrenewable 18-year terms. There is, however, a third way.” (Brad Snyder, n. pag.)
  Our founders were obsessed with preempting the anticipated corruption of our political system, relying in part on the separation of powers to ensure checks & balances upon and within government. Thus, Article 6 of Maryland’s influential Declaration of Rights (introduced 27 August 1776, adopted 3 November 1776) stipulated “That the legislative, executive and judicial powers of government, ought to be for ever separate and distinct from each other.”; and Article 7 stipulated “That no power of suspending laws, or the execution of laws, unless by or derived from the legislature, ought to be exercised or allowed.”
  While term limits were applied by the states to all government offices except the judiciary, Article 30 of Maryland’s Declaration of Rights (1776) placed important legislative checks on an otherwise independent judiciary: “That the independency and uprightness of judges are essential to the impartial administration of justice, and a great security to the rights and liberties of the people; wherefore the chancellor, and all judges, ought to hold commissions during good behaviour, and the said chancellor and judges shall be removed for misbehaviour, on conviction in a court of law, and may be removed by the governor, upon the address of the general assembly, provided that two thirds of all the members of each house concur in such address. That salaries liberal, but not profuse, ought to be secured to the chancellor and the judges, during the continuance of their commissions, in such manner and at such time as the legislature shall hereafter direct, upon consideration of the circumstances of this state. No chancellor or judge ought to hold any other office, civil or military, or receive fees or perquisites of any kind.”
  This revolutionary constitutional mandate against judges receiving “perquisites of any kind” is prescient given today’s environment where SCOTUS’s anachronistic corruptions of constitutional texts (including the First and Second Amendments) are allegedly derived from ideological researchers funded by opaque “dark money” sources, all of which is protected from public oversight or accountability, as most recently documented by Heidi Przybyla: see “What Ginni Thomas and Leonard Leo Wrought: How a justice’s wife and a key activist started a movement: Thanks to the Supreme Court’s Citizens United ruling, a trove of so-called ‘dark money’ was about to be unleashed. Two activists prepared to seize the moment” (POLITICO, 9/10/2023). Przybyla reports here on the well-funded Judicial Education Project, which “was becoming a major vehicle for filing amicus briefs on behalf of the conservative legal movement seeking to influence the Supreme Court. More than just expressions of support for one side or the other, these briefs often encompassed extensive fact-finding and analysis, spanning scores of pages. The goal was to offer conservative justices arguments that they could incorporate into their opinions.” (Heidi Przybyla, n. pag.)
  This does not look to me like “the impartial administration of justice” called for in Article 30 of Maryland’s Declaration of Rights (1776). And it goes a long way to explaining why an anti-liberal SCOTUS, with lax ethics and no checks & balances on its exercise of judicial supremacy, is enshrining so much “ignorance or misinformation” in constitutional law.
  Among the “Divers Lawes, and Ordinances” of Mosaic law: “And thou shalt take no gift: for the gift blindeth the wise, and perverteth the words of the righteous.” (Exodus 23:8, as given in the King James Authorized Version of The Holy Bible, 1st edn., 1611)
 
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  Allison Orr Larsen locates the problem (an over-reliance on “law office history”) and suggests solutions in The Supreme Court Decisions on Guns and Abortion Relied Heavily on History. But Whose History?: Justices say that history is a more legitimate way to interpret the Constitution, but they are taking that history from motivated advocacy groups, not professional historians” (POLITICO, 7/26/2022).
  “Professional historians are already complaining that the court got the history wrong in its recent cases, either by cherry-picking authorities or leaving out important nuance or both. When it came to the history of gun regulation, the court was awash in competing historical amicus briefs. The court chose one side, and in so doing caused historians to cry foul that the other history was ignored or distorted. In the abortion case, historians of the Middle Ages say some of the texts the court cites as proof that abortion was a crime in the 13th century are not about what we would think of as crime at all, but instead about ‘penance’ imposed by the Church — an ambiguity easily lost on people who are unfamiliar with medieval Latin. Indeed, it is worth noting that much of the 13th-century history the court recounts seems to have come from a brief filed not by historians, but by professors of jurisprudence who publish on the moral implications of abortion — well-respected professors in their fields, perhaps, but certainly not medievalists.
  “This reveals a systemic problem about relying on amicus briefs for historical narratives: The amicus market is dominated by motivated scholars. Because many neutral experts do not pay attention to the courts or participate in advocacy, the historical accounts presented to the justices are necessarily incomplete and motivated to build a particular argument.
  “The amicus brief is an old tool being put to a new purpose, and it is time for an update. The good news is that a few common-sense reforms would improve the situation.” (Allison Orr Larsen, n. pag.)
  Let’s hope so!

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Another look at the outsized role played by amicus briefs (“law office history”) in recent postmodern corruptions of Anglo-America’s historical common-law traditions: “‘Plain Historical Falsehoods’: How Amicus Briefs Bolstered Supreme Court Conservatives / A POLITICO review indicates most conservative briefs in high-profile cases have links to a small cadre of activists aligned with Leonard Leo” by Heidi Przybyla (POLITICO, 12/3/2023).
  Institutionalizing a single historian’s extremist “view of abortion as a crime throughout history” is bound to come back on you (most academic historians are wary of making such sweeping claims). Ideally, this is what peer review is for: to expose errors in scholarship (and there isn’t one of us out there who hasn’t made such errors, and will continue to make such errors, as long as we continue doing historical research).
  I recognize that our structures of peer review are often corrupted and, at worst, can lead a profession into the cul-de-sac of group-think. But the iconoclasts among us need the checks & balances of peer review, even more than other researchers. SCOTUS should be mindful of this when leaning into an idiosyncratic historical narrative to justify a personal agenda. In my experience, that kind of history is almost always wrong.

NEW  Published on 4/16/2024: an excerpt (“Title XXXII. Bearing of Unlawful Weapons.”) from Sir George Mackenzie’s Laws and Customes of Scotland, in Matters Criminal (Edinburgh, 1678), recording that the law transplanted to Scottish-America equated all firearms with “publick violence,” and as such, “the carrying of such Arms” was “forbidden, and the bearers punished, albeit no prejudice followed.”
  This is another important text in the literature comprising “the Nation’s historical tradition of firearm regulation” which has been selectively ignored by the courts. Click/tap here to access the appendix (designed to open in a small, floating 2nd window).
 
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NEW  On 3/23/2024 I digitized another important essay from this same legal treatise by Sir George Mackenzie, and posted it here.
  This text constitutes Mackenzie’s summary of abortion law and “How the murdering of Children is punished” during the early-modern period (from Mackenzie’s essay, “Title XIV. Paricide” in the editio princeps of Laws and Customes of Scotland, in Matters Criminal). As with so many other “Statutes and Customs of the Realm,” 17th-century legal traditions concerning parricide, infanticide, and abortion were rooted in Scripture, as I document here.
 
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EDITED  Also in March 2024, I incorporated more snippets from Sir George Mackenzie’s Laws and Customes of Scotland, in Matters Criminal (Edinburgh, 1678), to contextualize the discussion of public crimes (riot, sedition, insurrection, treason, etc.) in this Web page’s section entitled “A Tradition of Rebellious Assembly & Punishment”.
  I have since (end of April 2024) expanded on the Mackenzie material in this section, as our public debate over related national security issues, such as —
  •  Trumpty Dumpty-style border policies
  •  additional U.S. aid for Ukraine, held up by a factional Congress for 6 months because it has become a flashpoint for the struggle over what kind of democracy we want to be
  •  debating the postmodern meaning of insurrection and the insurrection clause (Section 3) of the Fourteenth Amendment
  •  reforming the Insurrection Act
  •  prosecuting vs. persecuting former President Trump for inciting “The January 6 Rebellion”
  •  former-President Trump’s claims to absolute presidential immunity, shielding him from civil and criminal charges for public crimes against the commonwealth, such as conspiring to overturn his election defeat
  •  obstructing and/or subverting government (at our 17th-century founding, this was known as “to misconstruct His Majesties Government, and proceedings,” and “hazarding the subvertion of the whole government” was considered a high public crime of major consequence)
— intensifies during a pivotal election year.
  I find the varied experiences and historical perspective of our founders on matters of national security to be quite illuminating in these troubled times.

Another milestone has been reached in California’s battle to assert its ancient right to promote the general welfare by disarming persons in the polity: “California Is Working Hard to Pass Gun Laws — And Even Harder to Defend Them: State lawmakers introduce new gun legislation in a tense legal climate” by Owen Tucker-Smith (posted to POLITICO website, 1/6/2023).
  As reported here, U.S. District Judge Roger Benitez recently asked California to back up its gun-safety agenda with historical evidence dating back to adoption of the Second Amendment on 15 December 1791: “While lawmakers wait for the Supreme Court to clarify its interpretation of the Second Amendment, Benitez is already forcing state lawyers to defend California’s slate of restrictions. Last month, he asked lawyers to draft a 97-year history of gun restrictions in the state — beginning with the ratification of the Second Amendment and ending 20 years after the ratification of the 14th.  ¶   The request emerged from the Supreme Court’s ruling in Bruen, which stated that judges must employ an interpretation ‘rooted in the Second Amendment’s text, as informed by history.’  ¶   The judge will use this history to aid his analysis — and to help determine the fate of gun safety laws in California, new and old.” (Owen Tucker-Smith, n. pag.)
  This increasing reliance on “law office history” has, according to Adam Winkler, who specializes in constitutional law and gun policy at UCLA’s School of Law, “forced attorneys across the country to spend valuable time doing historical research on Second Amendment law.” Winkler “called the surge in litigation [subsequent to the conservative Supreme Court’s Bruen decision] a ‘huge burden’ for state DOJs across the country.” “‘They have limited resources, and they have to expend those resources defending this gun law, rather than pursuing other cases,’ Winkler said. ‘There’s only so many people you have working in the office.’” (Owen Tucker-Smith, n. pag.)
  As part of my concerted effort to right the historical record selectively picked over by the courts, I have created this web page, with little-known historical evidence which I know to be relevant to a true “originalist” interpretation of the text of the Second Amendment, even if activist judges like San Diego federal Judge Roger Benitez hope to exclude it, because it falls outside the arbitrary “97-year history of gun restrictions in the state” which he has requested.
  I opened this sidebar entry with the assertion that the state has an ancient right to disarm persons within its body politic on behalf of the common good: this has long been held to be good government, based on the rule of law “as will best maintain peace and good order, and most effectually secure happiness and liberty to the people of this state” (Proceedings of the Conventions of the Province of Maryland, Held at the City of Annapolis, in 1774, 1775, & 1776, Baltimore, 1836, p. 220).
  In fact, the state’s right to disarm citizens goes back millennia, and is foundational to western civilization itself, dating to the 6th century BCE and the founding of Athenian democracy. The ancient Greeks (specifically, the lawgiver Solon) were the first to write into law that persons who publicly conduct themselves “in a most warlike manner” (early-modern phrasing from George Percy, “Observations gathered out of A discourse of the plantation of the southerne colonie in Virginia by the English, 1606,” in Hakluytus Posthumus or Purchas his Pilgrimes, ed. Samuel Purchas, 4 vols., 1625, 4.9.2.1688) disrupt civil society and should be disarmed. Click/tap here to open a second-window aside detailing the Attic laws involved.
  NOTA BENE  And to preempt those who would dismiss all this as ancient history well outside of Judge Benitez’s 97-year timeline, I would note that former U.S. President and founding father John Adams (1735–1826) owned a copy of John Potter’s Archaeologia Graeca (my source for the Attic laws in question) and that Potter’s two-volume Antiquities (1st edn., Oxford, 1697–98) was likewise a source for Sir William Blackstone’s Commentaries on the Laws of England (4 vols., Oxford, 1765–1769).
  In turn, Blackstone’s Commentaries were oft-cited by prominent early American jurists such as William Kilty. See, for example, Kilty’s A Report of All Such English Statutes as Existed at the Time of the First Emigration of the People of Maryland, and which by Experience Have Been Found Applicable to their Local and Other Circumstances ..., an early 19th-century work published with the imprimatur of the Maryland state legislature, in which Kilty references “a letter from Samuel Chase, Esq. at present [1810] one of the judges of the supreme court of the United States, to the late judge Tilghman, in answer to some enquiries made by him on the subject [the application and extention of the English statutes], of which I have been informed several copies were distributed. The following part of that letter is here inserted: ‘It is a general principle, that the first settlers of Maryland brought with them all English statutes made before the charter, and in force at the time, which were applicable to the local and other circumstances of the province, and the courts of justice always decided the applicability of any statute, and of consequence its extention. I have understood that the judges under the old government laid it down as a general rule, that all statutes for the administration of justice, whether made before or since the charter, so far as they were applicable, should be adopted by them.’” (Letter from SCOTUS Associate Justice Samuel Chase to Matthew Tilghman, justice for Talbot county, as qtd. in William Kilty, A Report of All Such English Statutes as Existed at the Time of the First Emigration of the People of Maryland ..., Annapolis, 1811, p. vi)
  Both Samuel Chase (1741–1811) and Matthew Tilghman (1718–1790) qualify as “founding fathers.”
  Justice Chase — the only Supreme Court justice to have been impeached (probably “the opening move in a Republican attempt to purge the Supreme Court of Federalists”) — was selected as a Maryland delegate to the first continental congress in 1774 and signed the Declaration of Independence on 2 August 1776. Despite his “passionate, impetuous temperament” and ethically-challenged entrepreneurial ventures, Samuel Chase was “one of the outstanding political and legal theorists of the period,” producing “persuasive and remarkable opinions [that] earned him a prominent place in the intellectual history of the early Supreme Court [as] perhaps the most notable jurist to sit on the Court before John Marshall.” (ODNB entry for “Chase, Samuel (1741–1811), Revolutionary Politician and Judge in the United States of America” by Jean B. Russo; and ANB entry for “Chase, Samuel (1741–1811), Associate Justice of the Supreme Court” by Margaret Horsnell)
  Justice Tilghman, a third-generation Marylander from one of the most powerful families on the eastern shore, has been dubbed “the Father of the Revolution” in Maryland and credited with “the order with which Maryland made the transition from province to state.” Matthew Tilghman “presided over seven of the nine Maryland provincial conventions held in the years 1774–6. He was also chairman of the committee of correspondence for Talbot county, president of the eastern shore council of safety in 1775, and head of every Maryland delegation to the continental congress from June 1774 until November 1776. Although wary of independence, Tilghman recognized its inevitability. However, he sought to ensure that the revolution did not threaten social order and the propertied interest. His opportunity came when he was chosen president of the convention that met on 14 August 1776 to draft the first Maryland state constitution. He also served as chairman of the committee elected by that body to prepare the new framework of government. What emerged under his aegis was one of the most conservative state constitutions in revolutionary America.” (ODNB entry for “Tilghman, Matthew (1718–1790), Planter and Colonial Politician” by Keith Mason; and ANB entry for “Tilghman, Matthew (1718–1790), Planter and Legislator” by Jane Wilson McWilliams)
  So these justices’ recommendations concerning the incorporation of ancient laws “such as have been found by experience applicable to our local and other circumstances” (W. Kilty, A Report of All Such English Statutes as Existed at the Time of the First Emigration of the People of Maryland ..., 1811, vii) are significant for anyone trying to parse the original public meaning of revolutionary Anglo-America’s founding texts.
  Faulkner was right: “The past is not dead; it is not even the past.”
 
[ UPDATE 1 ]  Following the mass shooting during a Lunar New Year celebration at a ballroom dance hall in Monterey Park, CA on 1/21/2023, the PBS NewsHour’s Geoff Bennett also interviewed Adam Winkler about what are widely-perceived as California’s anti-gun rights laws, now being challenged in court and invalidated by federal judges such as Roger Benitez: “Can Gun Safety Laws Make an Impact on the Frequency of Mass Shootings?” (aired 1/23/2023). Responding to Bennett’s remark that the U.S. is now “a country where gun ownership is considered a constitutional right,” Winkler replies, “Well, it is true that California’s gun laws do work. We have the lowest firearms mortality rate in the nation in California, far lower than the national average.  ¶   However, we should recognize that California has restrictive gun laws only compared to other American states. Compared to the Western industrialized world, for instance, California has some of the loosest and most permissive laws in the world.  ¶   So, California’s gun laws do try to reduce gun violence, but it’s still very easy for pretty much anyone to get their hands on a firearm in California.” And SCOTUS “has made it much harder for states to defend gun laws.” In sum: “California has tried mightily in recent years to reduce gun violence, and with some success.  ¶   However, it’s very difficult for a gun law to be effective when a resident of California can go to Arizona or Nevada and purchase the exact weapon that is outlawed in the state of California. Guns easily cross state lines. And, really, the only way to have effective American gun safety reform is to do it at the federal level.  ¶   Unfortunately, American politics don’t seem to be particularly ripe for such reform.” (Adam Winkler, n. pag.)
 
[ UPDATE 2 ]  With the latest wave of mass shootings in California impacting Asian-American communities, the PBS NewsHour’s John Yang interviewed activist Gloria Pan of MomsRising and the AAPI Against Gun Violence Coalition: “Latest Wave of Mass Shootings Sparks New Debate over U.S. Gun Access” (aired 1/25/2023).
  As others like Adam Winkler have noted, Pan stressed that “in California, the gun laws actually work.  ¶   California is the largest state in the country, and yet they have the eighth lowest rate of harm from guns. So, it works. The problem is that guns flow from state to state. It’s very, very easy to get a gun. We need national reform in order to decrease gun violence everywhere, including in states where there are already gun laws.  ¶   We can — California would have even lower gun violence if we did not have a national problem.” (n. pag.)
  And Pan reiterated that high rates of gun ownership correlate with high rates of gun violence: “Historically, Asian Americans have had the lowest rates of gun ownership. And because of that, we have actually had the lowest rates of gun violence in our communities. We have had the lowest rates of gun injury and gun deaths.  ¶   And we’d like to keep it that way. The more guns there are within our community, the more likelihood that there will be this kind of harm against our community and within our community. [...] But the actual defensive use of guns is really not very high. And the fact that there is a gun as part of your life increases the risk of harm. [...] So, in our low gun-owning community, we should try to make sure that the guns are not accessible. We do not want to see the accessibility to guns actually lead to higher rates of successful suicide.” (n. pag.)
  Her call for a new debate about our postmodern gun culture recalls ancient laws for disarming a warlike multitude that I claim here are foundational to western civilization: “We need comprehensive gun policy reform. But that’s not going to happen, because we have a culture problem.  ¶   There’s big resistance to any kind of reform. The fact that high-capacity magazines and assault weapons are in civilian circulation is a symptom of that problem. So, I would love to see a ban on that. If we could accomplish that quickly, that would indicate that we’re moving in the right direction to get the comprehensive reform that we need.” (Gloria Pan, n. pag.)
  Without question, our postmodern gun culture — where the multitude fetishizes an imagined constitutional right to act “in a most warlike manner” (again quoting George Percy [1580–1632/3], the younger son of a prominent English nobleman who sought fortune & adventure in America, serving twice as president of the Virginia colony’s ruling council [in 1609 and 1611]) — would seem decadent & barbarous to the early-modern Europeans who claimed to civilize the American wilderness.
 
[ UPDATE 3 ]  Reeling from California’s Monterey Park shooting on 1/22/2023, Thomas Curwen published “The Victims Were Our Neighbors” (Los Angeles Times, 1/29/2023, pp. A1 and A11) — a poignant look at the “familiar patterns of response that keep us in a psychological and political stalemate.”
  “‘Part of what happens when you feel frustrated and resigned is that you’re unwilling to engage in nuance and complexity — not just with mass shooting but with American gun violence more broadly,’ he [Dr. Jonathan Metzl] said. The impulse is to look for ‘easy causal answers, but it is never one thing.’  ¶   Instead we fashion hand-lettered signs — ‘ban semi-automatic rifles’ — and decry politicians and the gun lobby and find ourselves caught up once again in a long debate that cannot be won.” (A11)
  “‘Mass shootings are a reflection of a dysfunctional political system,’ Metzl said. ‘Limiting casualties requires a functioning political system where people can negotiate for reasonable protection.’” (Thomas Curwen, A11)
  Since Curwen wrote his opinion piece for the LA Times, new ways of coming together to do democracy more effectively have been proposed.
  It’s not too late to reorient ourselves in pursuit of “the publick Liberty” and “the publick good.”

An op-ed by the San Diego Union-Tribune Editorial Board points out that the California legislature bears responsibility, as well as activist courts, for the failure of state gun laws to withstand postmodern Second Amendment challenges: see “Why There Is Still Hope for Gun Reforms” (4/7/2023 print edn., p. B4).
  In light of two more California judges (Dana Sabraw and Cormac Carney) finding fault with state gun laws (this time, the Unsafe Handgun Act of 2001), the editorial board calls for more “carefully crafted,” “responsible gun legislation”: “we urge Newsom and the Legislature to renew their efforts to reduce gun violence but to do so by thinking more fully through their legal obstacles. They must craft laws that can survive the high court — not pass measures that amount to little more than value statements or thoughts and prayers.” (B4)
  Dan Walters also notes how the California legislature’s lost art of law-making has provoked backlash, especially in the courts: “One entire class of California laws, those imposing sometimes unique restrictions on private gun ownership, has fallen prey to constitutional challenges in recent months, thanks to the U.S. Supreme Court’s expansive interpretations of the constitutional right to bear arms.  ¶   While gun organizations have been challenging California’s array of gun control laws for years, the Supreme Court’s landmark Bruen decision last year, invalidating New York’s almost total ban on the carrying of personal weapons, opened the door. One by one, California’s laws are being invalidated.  ¶   Just last month, for instance, a federal judge in Southern California overturned the state’s law prohibiting the sale of handguns that don’t meet stringent — and technically unworkable – safety requirements, declaring that it runs afoul of the Bruen decision.  ¶   Even before the Bruen decision, a San Diego federal judge, Roger Benitez, had tossed out California’s ban on magazines holding more than 10 rounds, the state’s ban on assault rifles, and a law requiring background checks for ammunition purchases.  ¶   Another law that fell recently was one dreamed up by Newsom and the Legislature as a symbolic stunt – authorizing lawsuits against some gun manufacturers with conditions that made defense almost impossible. It was patterned after a Texas law making it easier to sue those who performed abortions, and Attorney General Rob Bonta didn’t even try to defend it when the inevitable lawsuit challenged it.  ¶   Undeterred by the serial invalidation of California gun laws, Newsom and legislators are working on another measure that, they say, would fit within the constraints of the Bruen decision. Senate Bill 2 would create new standards for the issuance of concealed weapons permits and list a number of new places where carrying weapons would be prohibited, even by those having permits.” (Dan Walters, “When California Laws Go Too Far, the Courts Intervene,” column posted to CalMatters website, 5/2/2023)
  There is no question that the Bruen decision’s “text, history and tradition” standard has caused mass confusion for the states and courts: see “Supreme Court Ruling Creates Turmoil over Gun Laws in Lower Courts” by Alanna Durkin Richer and Lindsay Whitehurst, for The Associated Press (posted to the PBS NewsHour website, 2/18/2023).
  But it has also created new opportunities.
  “Under the Supreme Court’s new test, the government that wants to uphold a gun restriction must look back into history to show it is consistent with the country’s ‘historical tradition of firearm regulation.’” (A. D. Richer & L. Whitehurst, n. pag.)
  It just so happens that the Anglo-American historical tradition of firearm regulation is deeply rooted in gun laws serving “public interests like enhancing public safety” (the old test used by lower courts for evaluating challenges to firearm restrictions).
  See, for example, Maryland’s gun-control law enacted in 1658. And that same year, the Virginia state legislature was so concerned with preventing “a disturbance of the peace now made between the two nations” inhabiting the Virginia commonwealth that it reversed its policy dating to 1619 (the first gun law passed in Anglo-America) prohibiting settlers from selling or giving firearms and ammunition to indigenous Americans: “Whereas there is an act in force prohibiting the lending of gunns or ammunition to the Indians, by vertue of which many quarrells have arisen between English and Indians caringe [carrying] their owne gunns, which might, unles prevented, prove a disturbance of the peace now made between the two nations, It is enacted and ordained that it shall be lawfull for the Indians to make use of their owne gunns and amunition without the lett or molestation of any person or persons whatsoever within theire owne limitts.” (Act IV, passed by the Virginia “Grand Assembly held at James Cittie,” 7 March 1658–9)
  From first settlement in 1607, concerns for the public “peace and good order” and “the publick Liberty” drove Anglo-American law, including civil rights, which were limited to “such rights as will best maintain peace and good order, and most effectually secure happiness and liberty to the people of this state” (Proceedings of the Conventions of the Province of Maryland, Held at the City of Annapolis, in 1774, 1775, & 1776, 1836, 220).
  Since the ancient Greeks, an unregulated, armed multitude was deemed inimical to the public “peace and good order” and “the publick Liberty.”
  So there is less of a disjuncture here — between the latest (Bruen decision’s) postmodern “text, history and tradition” standard, and more traditional “public interests like enhancing public safety” — than many of us assume.
  Even more consequential, IMO, is that we apply the new Bruen test to the Second Amendment itself.
  Judged by an informed standard of “text, history and tradition” prior to the 20th century, it is obvious that the original Second Amendment has nothing to do with the multitude’s right to keep and bear arms. (As I have said many times, it concerned the ongoing struggle over the legal traditions of the royal prerogative, especially control of the armed forces, brought to a head in Britain and British America Carolorum — under the rule of Charles I and Charles II, 1625–1685 — and continuing well into the 18th century.)
  The Second Amendment provides no guidance whatsoever concerning the evolving rights and obligations of any “person or persons” to keep and bear arms.
  The sooner we all acknowledge & make peace with this inconvenient truth, the better.

Post-Bruen, the courts are producing so many anachronistic decisions upholding the multitude’s right to keep and bear arms that I (a devotee of festina lente, working in my usual slow haste ;-) can’t keep up with it all! Two recent decisions — again, grounded in erroneous assumptions about the kind of legal restrictions “our ancestors” would and would not have accepted — have grabbed my attention, and are worthy of comment in this space.
 
[ UPDATE 1 ]  The first concerns the February 2023 ruling by the U.S. Court of Appeals for the Fifth Circuit of Texas, Louisiana and Mississippi “that domestic abusers should be allowed to keep their guns,” despite the untenable situation we’re in whereby “Nearly three women a day are murdered by intimate male partners” (Katha Pollitt, “For Women’s History Month, Let’s Make History,” 316.7 [3–10 April 2023]: 12) For a summary, see the PBS NewsHour segment in which Amna Nawaz interviewed Chip Brownlee, “Court Ruling Allows People under Domestic Violence Restraining Orders to Possess Guns” (aired 2/9/2023).
  According to Nawaz, “It’s notable in their decision they made clear that the question wasn’t about whether keeping a gun away from someone who has a domestic violence restraining order is what they call a laudable goal.  ¶   They acknowledge it is, but they say they’re working under a new standard. That’s a standard that’s based on that Supreme Court decision in June [2022] known as the Bruen decision. What did that change?”
  Brownlee replies: “So, previously, in federal court cases, courts could weigh the benefits of a law against the constitutional questions around it.  ¶   So they could look at something and say, this law is designed to prevent gun violence, and it balances that with constitutional protections, and so it can be ruled OK. After Bruen last year, the Supreme Court essentially told lower federal courts that the only thing that they can take into account is history and tradition.  ¶   Basically, what they said is, if a law wasn’t around, around the time of the founding, around the colonial period, the early days of the U.S., then it can’t exist today. So they basically told the lower courts that they can’t consider these other things like public safety. [...] They had to look and see whether there were what’s called historical analogies back in the earlier history of America to support a law existing now.  ¶   And in the case of domestic violence, most states didn’t start criminalizing domestic violence until the 1900s. And in this specific case, this law, the law that we’re talking about, wasn’t around until the 1990s....” (n. pag.)
  This is only true if we adopt SCOTUS’s anachronistic view of “historical analogies.”
  Anglo-American laws during the 17th and 18th centuries may not call out guns or domestic partners in modern terms, but that doesn’t mean that domestic violence wasn’t criminalized until the 1900s.
  To reiterate: the public peace & safety and “the publick Liberty” were driving concerns for all branches of government during the colonial & revolutionary periods. Then, as now, a range of laws were enacted criminalizing domestic violence (not just physical, but also verbal abuse), with the laudable goal of maintaining public “peace and good order” (“such rights as will best maintain peace and good order”, according to Maryland’s constitutional convention, meeting on 17 August 1776).
  A case in point: Maryland’s 1658 statute stipulating that the multitude (persons) can be disarmed if “such person be proved to beare armes to an Hostile intent.”
  Is this not a historical analogue for contemporary laws disarming hostile persons who have domestic violence restraining orders against them?
  Yet another historical analogue for modern laws disarming hostile persons who have domestic violence restraining orders against them: “If any person Slayeth another with Sword or Dagger who hath no weapon to defend himself; he shall be put to Death.” (The Duke of Yorke’s Lawes, introduced 22 September 1676)
  Later, in 1682, “The Great Law or The Body of Laws, Of the Province of Pennsilvania & Territories thereunto belonging” stipulated that “violences, to the persons and estates of the inhabitants within this province” were “to be severely punished.” Longstanding prohibitions on duelling were enacted in The Law Against Challenging to Fight: “whosoever shall Challenge another person to fight, hee that Challengeth, and hee that accepteth the Challenge, shall for every such offence, pay five pounds, or suffer three month’s imprisonment in the house of Correction, at hard Labour.” Duels usually involved weapons, but in general, “any person Convicted of an Assault or Battery, Committed by him on another person, hee shall be Reputed a Breaker of the peace, and shall be punisht according to the Nature and Circumstance of the fact.”
  Expansive laws such as this covered a wide range of violent acts, and it is anachronistic to assume that such violent persons who disrupt the “peace and good order” — in public & in private — can not be disarmed by the state. They certainly were in the past, as with the Virginia statute prohibiting a presumed hostile person from arming “himselfe with any club, staffe, gunn, sword or any other weapon of defence or offence” (from An Act for Preventing Negroes Insurrections, enacted “at a Generall Assemblie” convened 8 June 1680 in Virginia, after suppressing Bacon’s Rebellion of 1676-77, in which black slaves were active participants).
  Indeed, our ancestors tolerated more expansive and punitive laws relating to “Actions of Assault or Battery Breach of the peace or the like” than anything proposed today. In the 17th century, smiting one’s parents (weaponless domestic violence) was a capital offence: “If any Child or Children, above sixteen years of age, and of Sufficient understanding, shall smite their Natural Father or Mother, unless thereunto provoked and forct for their selfe preservation from Death or Mayming, at the Complaint of the said Father and Mother, and not otherwise, they being Sufficient witnesses thereof, that Child or those Children so offending shall be put to Death.” (The Duke of Yorke’s Lawes, introduced 22 September 1676)
  And domestic violence was not then limited to physical abuse (with or without weapons), but extended to “threatining & menacing speeches,” “foule words,” even “scornful” speech: “Assaults are made either by Blowes offering of hurtful blowes, or at leastby threatining & menacing speeches,” according to The Duke of Yorke’s Lawes.
  In an era which too many of us assume would have disdained “woke” sensitivities, abusive speech of all kinds was criminalized. America’s first militia statute, enacted 5 March 1623–4 — shortly before the Virginia Company was dissolved, and Virginia became a royal colony (in May–June 1624) — included a section prohibiting speech that was merely critical of the status quo, as one of this country’s earliest representative assemblies mandated unquestioning obedience to Virginia’s government and sociopolitical hierarchy: “That no person within this colony upon the rumur of supposed change and alteration, presume to be disobedient to the present government, nor servants to their private officers, masters or overseers at their uttermost perills.”
  Later in the century, criticism of government officials was explicitly equated with assault: “To rebuke an Officer with foule words, so that he departs with fear without doing his Office shall be taken for an Assault.” (The Duke of Yorke’s Lawes, introduced 22 September 1676) “Assaulters and menacers of magistrates,” of “Master or Mistress,” and of authority figures in general (e.g., ministers, military officers) suffered various punishments (according to Pennsylvania’s The Law Against Menacing Magistrates, “hee shall be fined according to the nature of the fact, and be Committed to the house of Correction, at hard Labour, for one month after Conviction”). Even the speech of sullen teenagers, or other dependents, was considered an assault on their betters and routinely corrected with corporal punishment: “And if any Children or Servants become rude Stuborne or unruly refusing to hearken to the voice of their Parents or Masters the Constable and Overseers, (where no Justice of the Peace shall happen to dwell within ten miles of the said Town or Parish) have power upon the Complaint of their Parents or Masters call before them Such an Offender, and to Inflict such Corporall punishment as the merrit of their fact in their Judgment shall deserve, not excepting ten Stripes, provided that such Children and Servants be of Sixteen years of age.” (The Duke of Yorke’s Lawes, introduced 22 September 1676)
  Women’s disorderly speech (“scolding,” “gossip”) was also singled out and criminalized for disturbing the peace (especially when it incited a riot or insurrection, as occurred with Bacon’s Rebellion of 1676–77). Gags and ducking-stools (early-modern-style water-boarding) were prescribed punishments for female scolds. Thus, “babling women” who “slander and scandalize their neighbours [...] shallbe punished by ducking,” as was Joane Butler of Northampton County, Virginia (in 1634, she was “drawen over the Rings Creeke [Kings Creek] at the starne of a boate or Canoux”).
  Are we to discount this thick historical tradition of gun controls & speech restrictions — all enacted “for the better Preservation of the Peace” — simply because it doesn’t closely resemble contemporary laws?
  Our 18th-century founders didn’t. They believed, as did Charles II, that preventing “the great Disturbance of the Peace of His Royal Majesty’s Leige People [vassals] in this Colony” was of paramount importance, and they made keeping the public peace (domestic tranquility) a founding principle of U.S. constitutional government: “We, the people of the UNITED STATES, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, DO ordain and establish this CONSTITUTION for the United States of AMERICA.” (Preamble to The Constitution of the General Government [1789], as printed by William Kilty in 1799, “under the authority of the legislature” for the state of Maryland)
 
[ UPDATE 2 ]  My second example is U.S. District Court Judge Robert Payne’s May 2023 ruling that the law banning licensed federal firearms dealers from selling handguns to young adults under 21 violates the Second Amendment and is unconstitutional: see “Banning Gun Sales to Young American Adults under 21 Is Unconstitutional, Judge Rules” by Denise Lavoie, for The Associated Press (posted to AP’s website, 5/11/2023).
  SCOTUS’s Bruen decision virtually compels Judge Payne to find that “If the Court were to exclude 18-to-20-year-olds from the Second Amendment’s protection, it would impose limitations on the Second Amendment that do not exist with other constitutional guarantees.” — even though, historically, the Second Amendment is irrelevant here (the original text makes no guarantees of any kind to any person or persons, whatever their age).
  “Payne, who cited the 2022 Supreme Court [Bruen] ruling repeatedly in his ruling, wrote that the government failed to present ‘any evidence of age-based restrictions on the purchase or sale of firearms from the colonial era, Founding or Early Republic.’ The lack of similar regulations from those time periods indicates that the ‘Founders considered age-based regulations on the purchase of firearms to circumscribe the right to keep and bear arms confirmed by the Second Amendment,’ he wrote.” (Denise Lavoie, n. pag.)
  As a historian, I find such pre-determined chains of if-then logic inappropriate for interpreting such complicated cultural phenomena as English common law, as it was adapted to colonial circumstances as various as the city of Philadelphia in 1682 vs. the mid-sized family farms of West New Jersey in 1676 vs. the frontier settlements in Spotsylvania and Brunswick counties (Virginia) in 1720, where special units of “Rangers” were exempted from state-regulated militia duty, and subject to different gun laws than the Virginia multitude (as were “Tributary Indians” such as the Pamunkey and Chickahominy who, as “her Majesty’s Subjects,” according to the 6th revisal of Virginia laws in 1705, shared an Englishman’s “Liberties and Privileges” when it came to persons and property).
  There are all sorts of reasons why “similar [...] age-based regulations on the purchase of firearms” were not enacted during “the colonial era, Founding or Early Republic,” so a lack thereof proves nothing about “the country’s ‘historical tradition of firearm regulation’” — let alone whether the Gun Control Act of 1968, and the associated regulations from the Bureau of Alcohol, Tobacco, Firearms and Explosives, are consistent with this historical tradition.
  Surely, the spirit of a law (original intent) matters as much as the letter of the law when we’re trying to interpret legal texts. And when we judge gun laws according to textual ends, not just means, we find noticeable consistency across the centuries. Enacting gun controls that serve “public interests, like enhancing public safety” — with the end-goal of preserving the public peace (“such rights as will best maintain peace and good order”, to again quote Maryland’s constitutional convention, meeting on 17 August 1776) — is perfectly in keeping with “the country’s ‘historical tradition of firearm regulation.’”
  As we have seen, laws regulating the violent behavior (both physical and verbal) of young adults, aged 16 and older, date to the 1670s in Anglo-America, after James, duke of York, acquired New Netherland in 1664 (finalized with the Anglo-Dutch treaty of Westminster in 1674), and “the duke’s laws” were introduced to the proprietary colony of New York. When James became king in 1685, the proprietary colony of New York was transformed into a vast crown colony (the dominion of New England), extending over the whole area from Maine to the Delaware River. James’s crown colony of New England incorporated the colonies of Massachusetts, Connecticut, New Hampshire, and Rhode Island (1686), and then New York and New Jersey (1688). Even when New York was a proprietary colony under the duke, James ruled his proprietorship as an absolute monarch. The dominion of New England thus acquired many of the characteristics of absolutism which Charles II and James II established in old England. E.g., there was a standing army, censorship of the press, and arbitrary imprisonment.
  In the province of West New Jersey, with its liberal framework of government embodying “concepts and ideals that must by any test be regarded as an integral part of the American heritage” (J. E. Pomfret, The Province of West New Jersey, 1609–1702, 93), the large freedoms and guarantees of individual liberty for which West Jersey was famed (e.g., liberty of conscience, trial by jury with full recognition that the jury were judges of fact and law) deviated from “the country’s ‘historical tradition of firearm regulation’” established by “the duke’s laws.”
  Even in this bastion of individual liberty, the body of West Jersey law intended “That Men may peaceably and quietly enjoy their Estates.” But West Jersey’s approach to managing domestic violence was situational, allowing persons convicted of assault to be punished according to the nature of the offense as determined by the jury: “If any person or persons, shall willfully beat, hurt, wound, assault, or otherways abuse the person or persons of any man, woman, or child, they are to be punished according to the nature of the offence, which is to be determined by twelve men of the neighbourhood, appointed by the commissioners.” (“The Concessions and Agreements of the Proprietors, Freeholders and Inhabitants of the Province of West New Jersey, in America,” 3 March 1676–7)
  Because this fundamental West Jersey law does not mention a violent offender’s age, or focus on “the purchase of firearms,” are we to ignore the “conspicuous importance” (Pomfret, 95) of the West Jersey Concessions and Agreements in “the country’s ‘historical tradition of firearm regulation’”?
  Is it not also relevant that age-based restrictions on the provisioning of firearms were in place throughout the colonial era? Multiple statutes gave to “the colonel or chief officer of the militia of every county” “full power and authority to list all male persons whatsoever, from sixteen to sixty years of age within his respective county, to serve in horse or foot, as in his discretion he shall see cause and think reasonable,” with “musket or ffuzee, the sword, cartouch box and ammunition of every ffoot soldier, and the horse, saddle and furniture, the carbine, pistolls, sword, cartouch box and ammunition of every trooper provided and kept in pursuance of this act” — that is, all arms which were required “to appear and exercise withall” in a well-regulated militia — exempted “from being seized or taken by any manner of distress, attachment, or writt of execution,” “to the end the militia of this her majesty’s colony and dominion, being settled and armed as aforesaid, may be the better fitted for service.” (An Act for Settling the Militia, enacted at a General Assembly in Virginia, convened 23 October 1705) Do we dismiss the all-important militia laws “from the colonial era, Founding or Early Republic” simply because they do not include anachronistic language (“the purchase or sale” of firearms) appropriate to a hyper-individualistic consumer society which did not exist in the 17th–18th centuries?
  And is it not also relevant that, at the same time laws throughout British America reinforced the state’s right to arm and disarm the multitude, 17th- and 18th-century Virginia law took away the right to vote from those under the age of 21? (This abridgement of youth suffrage in 1699 was also reenacted in the 6th revisal of Virginia laws in 1705.)
  “In his 71-page ruling, Payne wrote that many of the rights and responsibilities of citizenship are granted at the age of 18, including the right to vote, enlist in the military without parental permission and serve on a federal jury.  ¶   ‘If the Court were to exclude 18-to-20-year-olds from the Second Amendment’s protection, it would impose limitations on the Second Amendment that do not exist with other constitutional guarantees,’ Payne wrote.” (Denise Lavoie, n. pag.)
  In a follow-up AP article about this case, it is reported that “Some judges have expressed frustration with the Bruen test and questioned whether judges are suited to be analyzing history. In his decision, Payne used a footnote to lament what he sees as the challenges with the test, saying ‘this court is staffed by lawyers who are neither trained nor experienced in making the nuanced historical analyses called for by Bruen.’  ¶   ‘There is a reason that historians attend years of demanding schooling and that their scholarship undergoes a rigorous peer-review process before publication,’ he wrote.” (“What to Know About Judge’s Ruling on Age Limit for Young Gun Buyers” by Alanna Durkin Richer and Denise Lavoie)
  So, even experienced jurists think that SCOTUS’s misguided Bruen decision is setting up the courts to fail.
  This is a far cry from the vision of justice established by the founders in the preamble to the constitution.
  IMO, it is Bruen’s corruption of “the country’s ‘historical tradition of firearm regulation’” that is unconstitutional, not modern gun violence prevention efforts that raise the minimum age for purchasing firearms, based on “scientific literature that shows the brain continues to develop in the early 20s and that 18- to 20-year-olds are more impulsive than older adults.”
  For more, see the PBS NewsHour Weekend segment, “As States Grapple with Age Limits for Buying Guns, What’s the Potential Effect?” (aired 5/13/2023).

I am growing increasingly frustrated every time I read about another post-Bruen court decision asserting that this-or-that contemporary law “is inconsistent with the Nation’s historical tradition of firearm regulation.” Case in point: “Could Hunter Biden Be the Next Poster Child for Second Amendment Rights?: The president’s son is under investigation for potentially breaking the law banning drug users from owning guns – but the law’s constitutionality faces growing challenges” by Betsy Woodruff Swan (POLITICO, 6/1/2023).
  From which: “The Gun Control Act of 1968 prohibits unlawful drug users from possessing firearms. The Bureau of Alcohol, Tobacco and Firearms says this ban applies to people who have admitted to using illegal drugs in the 12 months before buying a gun. Violators can receive up to 15 years in prison. [...] Just a week after Bruen was released, a federal district judge in Utah ruled that the prohibition on drug users owning guns was unconstitutional because of its vagueness. Judge Jill Parrish noted that the statute itself doesn’t define the word ‘user’ and also doesn’t say how the timing of people’s drug use affects their right to own guns. Parrish’s ruling — which the government has appealed — was based on the Fifth Amendment, not the Second, so it did not cite the Supreme Court’s Bruen decision. But Bruen only strengthens challenges to the drug-user prohibition.  ¶   Just ask Judge Patrick Wyrick, a district judge in Oklahoma who ruled in February that the government could not use the statute to prosecute a defendant who was caught with a gun and had marijuana in his car. In an opinion that relied heavily on Bruen, Wyrick wrote that barring marijuana users from possessing guns ‘is inconsistent with the Nation’s historical tradition of firearm regulation.’ He rejected the government’s attempts to defend the statute’s constitutionality, including the government’s citations to 19th century laws that restricted people from using firearms while drunk.” (Betsy Woodruff Swan, n. pag.)
  Laws restricting the multitude from shooting while drinking date to 17th-century America, and if shooting while using recreational drugs had been a problem back then, there would have been laws about this, too (anything which disturbed the “public peace and happiness” drew a government response).
  So I would challenge all justices, including Judge Wyrick, to define what exactly they mean by “the Nation’s historical tradition of firearm regulation.”
  As this unfinished Web page (with its 10 appendices) evidences, I can give you this country’s first gun statute ... and this country’s first militia statute ... and I can describe how these and other 17th-century statutes, ordinances & regulations evolved into the Second Amendment ... but I can not reduce the situational multiplicity of gun and militia laws across the first two centuries of Anglo-America’s founding to some pat “historical tradition of firearm regulation.”
  And I do not believe anyone else can, either.
  So I would propose that we stop equating SCOTUS’s anachronistic refashioning of gun rights with “the Nation’s historical tradition of firearm regulation.” The two are not the same.
  Indeed, it is the newfangled constitutional right of the multitude to bear arms that “is inconsistent with the Nation’s historical tradition of firearm regulation,” as I have reconstructed it here.
  Judge Wyrick, and others of his school, clearly have in mind a different “historical tradition of firearm regulation” than what I have documented here — one that has been cherry-picked for a special form of textual nit-picking (another Anglo-American tradition for which scholars like me and 17th-century Jesuits have long been excoriated ;-).
  Being a historian, not a lawyer, I am not qualified to engage in legalistic wrangling over firearm regulation (e.g., “up to 15 years in prison” seems to me a disproportionate and excessive punishment, by any standard; I have no idea how the Fifth Amendment applies to this case, but I expect I would find the legal arguments interesting; and I have personal experience in small claims court with how judges arbitrarily twist the vague concept of “use” — and “benefit” — for their own ends, but no clue how regular folk can protect ourselves against this).
  That said, in a constitutional republic such as ours, it’s only fair — and just — that a judge’s idiosyncratic definition of “the Nation’s historical tradition of firearm regulation” be clearly spelled out for all who are forced to comply with it.
  Those of us who march to the beat of a different constitutional drummer — encapsulated in our nation’s historical commitment to “ensure domestic tranquillity” (Preamble, U.S. Constitution) and promote “good government and the public peace and happiness” (Maryland’s constitutional convention, meeting 27 August 1776) — are at a historic disadvantage, otherwise.

NOTA BENE  For all you libertarians out there who believe in the Machiavellian theory of arms as essential to liberty (“Machiavelli’s military populism”), a brilliant historical study of the ideal of warrior citizenship — including its influence on the framing of U.S. constitutional governments — has been reissued by Princeton University Press: see The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition, by J. G. A. Pocock (1st edn., 1975; new edn., introd. by Richard Whatmore, 2016).
  The book can be tough going in places, but I recommend that you persevere.
  After all, parsing “the differences between ‘republican’ and ‘liberal,’ ‘ancient’ and ‘modern,’ concepts of ‘liberty’; and [...] the tensions between them” (J. G. A. Pocock, The Machiavellian Moment, new edn., 2016, 555) is in itself a complicated endeavor. Even a scholar of Pocock’s caliber can not turn such difficult discourse into light, summer reading. Refusing to “dumb it down,” Pocock’s scholarship does justice to the citizen warrior’s rich history and tradition, without being postmodernist (jargon-ridden), or condescending.
  IMO, Pocock provides a much more substantive foundation for contemporary republican arguments — impacting law, government, and culture — that the armed citizen is the only truly free man (and the bedrock of a balanced republic) than anything postmodern activist jurists (like San Diego’s Judge Roger T. Benitez) are trying to graft on to the Second Amendment.
  As Pocock points out, the debate over “the rise and fall of armed and active citizenship” is “ongoing and without a final outcome.” (J. G. A. Pocock, The Machiavellian Moment, new edn., 2016, 555)
  Maintaining (and even more ambitiously, advancing) what the 18th-century physician and encyclopedist, Dennis de Coetlogon, called “the publick Liberty” (De Coetlogon, An Universal History of Arts and Sciences, 2 vols., 1745, 2.42) is not now, and never has been, reducible to the Second Amendment, even if we manage to completely twist the clause’s meaning, such that it guarantees “an individual right to keep and bear arms for self-defense” (SCOTUS’s 6/23/2022 New York State Rifle & Pistol Assn., Inc. v. Bruen opinion, p. 2) which would have been inconceivable to our founding fathers & mothers.
  As such, those wishing to make the case for a refashioned commonwealth of armed proprietors will need more substantive grounds on which to build than a postmodern corruption of the Second Amendment.
  I would suggest that Pocock’s provocative scholarship outlines exactly the type of persuasive argument you’ll need in developing a post-Second Amendment rhetoric suitable to a 21st-century republic.
 
                   *  *  *
 
That said, it’s worth noting that scholars are moving Pocock’s seminal work in new directions which, I would argue, encourage contemporary citizens to rethink received wisdom concerning modern republicanism. Here I would recommend the work of Vickie B. Sullivan, especially Machiavelli, Hobbes, and the Formation of a Liberal Republicanism in England (Cambridge University Press, 2004).
  “Certain writers of the seventeenth and early eighteenth centuries, whom scholars often associate with classical republicanism, were not, in fact, hostile to liberalism. Indeed, these thinkers contributed to a synthesis of liberalism and modern republicanism. As this book argues, Marchamont Nedham, James Harrington, Henry Neville, Algernon Sidney, and John Trenchard and Thomas Gordon, the coauthors of a series of editorials entitled Cato’s Letters, provide a synthesis that responds to the demands of both republicans and liberals by offering a politically engaged citizenry as well as the protection of individual rights. The book also reinterprets the writings of Machiavelli and Hobbes to show that each contributed in a fundamental way to the formation of this liberal republicanism.” (Publisher’s blurb inside book cover)

There is again (start of 2024) a movement afoot to modernize the Insurrection Act of 1807, which replaced the earlier Calling Forth Act of 1792.
  As I understand it — and my understanding is superficial at best — the intent is to close loopholes in the Insurrection Act which bypass historical checks & balances, weakening democratic institutions (such as the congress), and moving us in the direction of an imperial presidency. See the reporting by Joe Gould, “Trump Wants to Send Troops to the Inner Cities. A Top Senator Wants to Rein Him In: Sen. Richard Blumenthal is contacting other lawmakers in his bid to overhaul the Insurrection Act” (POLITICO, 1/24/2024).
  “Blumenthal said he is drafting a new version of his legislation that would amend the law to more clearly define what an insurrection is and the circumstances under which the president can use force, though he did not offer specifics. It would also grant local officials standing in the courts to have the emergency lifted at some point after the act is invoked.” (Joe Gould, n. pag.)
  A modern definition of insurrection is essential, IMO. As I have documented at left, “the Statutes and Customs of the Realm” at our 17th- and 18th-century founding are in this case at odds with evolving contemporary liberal democratic values regarding freedom of speech and assembly, plus cruel and unusual punishment. E.g., we no longer consider it high-treason merely “to say, the King is an Heretick or Papist, or that He intends to introduce Popery.” We no longer hang, draw & quarter those convicted, degraded, and attainted of high-treason, “defined to be an offence committed against the Security of the King or Commonwealth, whether it be by imagination, word, or deed.” Nor do we draw and burn alive a wife convicted of petty-treason because she killed her husband. Nor do we hang 8-year-olds who commit homicide (again, petty-treason when the crime is committed against a social “Superior to whom he ows Faith and Obedience”).
  I would also caution that, in its present form, the Insurrection Act comes dangerously close to reversing the Second and Third Amendments by wresting the royal prerogative over “All kind of Arming” away from “the people” and restoring it to a sovereign power which, once freed of constitutional checks & balances, can, on a whim, turn the military on domestic critics, lawful protesters, and law-abiding citizens.
  IMO, this is definitely not what our 18th-century founders had in mind when they crafted Art. I, § 8 (14) of the Constitution for the United States of America, which gives The Congress — not a rogue president, acting with impunity under the assumption that the immunity attaching to the office of the president attaches to him personally, placing the office-holder, like a king, above the law — the power to “suppress insurrections and repel invasions.”
  I would also note that the Third Amendment (or “Article the Third”) — which is often overlooked, because the problem of a civilian populace at the mercy of an occupying military seems completely irrelevant to the 21st-century United States — was crafted at a time when the citizenry was all too familiar with the precariousness of life under the boot of unregulated militias and martial law (which dates to our founding in 1607). Military occupation was a huge concern for Anglo-American persons throughout the first two centuries of this nation’s existence, which is why we have a Third Amendment, and similar archaic statements in state constitutions prohibiting quartering the military “in any house without the consent of the owner” (Third Amendment), such as Article 28 in Maryland’s Declaration of Rights (1776).
  It is easy to take these hard-won liberties for granted.
  I suggest that we no longer do so, and that lawmakers hold tight to their constitutional power over domestic military occupation “in time of war ... in a manner to be prescribed by law” (Third Amendment).
 
NEW  [ UPDATE 1 ]  Congressional checks & balances are even more urgent now that “1 in 5 Americans Think Violence May Solve U.S. Divisions, Poll Finds,” as reported on 4/3/2024 by PBS NewsHour’s Laura Santhanam. Sharing former President Donald Trump’s bleak vision of American decline — “that things are awful and only he can fix them” — “28% of Republicans strongly agree or agree that Americans may have to resort to violence in order to get the country back on track.”
  While “We’re still a country that believes in law and order, and everybody still has to play by the rules,” “This poll found that about 25 percent of U.S. adults thought a president should be immune from crimes committed while in office. Republicans, at 34 percent, were nearly twice as likely as Democrats (18 percent) or independents (19 percent) to feel this way.” “In addition, 41 percent of Americans overall said the nation has gotten so far off track that it needs a leader willing to break rules. Looking across partisan lines, 56 percent of Republicans, 28 percent of Democrats and 37 percent of independents agree.  ¶   Regardless of your politics, the idea of breaking rules and engaging in violence is just antithetical to the idea of America,’ McQuade said.  ¶   Disinformation, both on the campaign trail and on social media, has gone far to distort people’s sense of reality, she added.” (Laura Santhanam, 4/3/2024, n. pag.)
  “The idea of America” as a meritocracy based on the principle of equal justice under the law dates to the 17th century, when settlers like George Scot vehemently opposed the transplantation of rigged sociopolitical hierarchies such as occurred in Carolina, whose proprietors were above the law, “So that be their Actings never so Illegal, or unjust; if any these eight Proprietors should commit Murders, or Rapes, or any other Act of Oppression, they cannot be challenged upon accompt thereof in any Judicatory in Carolina” (G. Scot, The Model of the Government of the Province of East-New-Jersey, in America; and Encouragements for such as Designs to Be Concerned There, [Edinburgh, 1685], 213). The idea that, in 2024, one-quarter of the United States is ready to return to such an arrangement with its elected leadership — especially a presidential candidate indicted on 4 felony counts (including conspiracy to defraud the United States and witness tampering) for his efforts to overturn the 2020 presidential election, who is threatening a “blood bath for the country” if he does not get reelected in 2024, and to send U.S. troops into Democratic cities if he is reelected — would have stunned founders like Scot, who experienced first-hand the tyranny of such strongman regimes.
 
NEW  [ UPDATE 2 ]  For another perspective on why we need to reign in a president’s ability to deploy the U.S. military within the country, see Geoff Bennet’s interview with Harvard Law School’s Jack Goldsmith, former assistant attorney general in the George W. Bush administration: “Examining the Push to Reform the Insurrection Act” (PBS NewsHour segment, aired 4/8/2024).
  According to Goldsmith, “The Insurrection Act, as it’s currently written, is a blank check for any president to bring the military into the domestic realm.  ¶   It has extremely vague triggers for its use. It has no time limit on its use. It’s just a blank check for any president. And so it’s an opportunity for abuse for any president. And there have been reform proposals for the Insurrection Act going back decades.” (n. pag.)
  Reformers like Goldsmith seek “two core changes.  ¶   The first is that the statute has very antiquated language and very vague triggers for when the president can invoke it to bring the military into the domestic realm. It talks about assemblages and combinations. And it’s the mere possibility — the mere possibility of domestic violence of any sort is enough under the statute.  ¶   So our group proposed tightening up and narrowing the circumstances in which the president can use it.  ¶   The second, and in many ways the most important, reform is to bring Congress back into the use of the statute. The president derives his authority to invoke the statute only because Congress gave it to him in the Insurrection Act.  ¶   And we think that the president should have to consult with Congress, should have to make findings to Congress about why he’s using the act and, most importantly, that the president be limited, time-limited, in his use of the act.  ¶   So, the authority to invoke the act, to bring the military into the domestic realm should be limited. We propose no more than 30 days.” (n. pag.)

As we gear up for a vigorous public debate over the postmodern meaning of insurrection and the insurrection clause (Section 3) of the Fourteenth Amendment, both of which are at issue in the Supreme Court case, Anderson v. Trump (with oral arguments scheduled for 2/8/2024), an explainer from POLITICO summarizing some of the key legal arguments involved is helpful: “6 Key Questions in Supreme Court Fight over Trump’s Ballot Eligibility: The justices will confront a hornet’s nest of legal issues as they hear arguments in the historic case” by Josh Gerstein (POLITICO, 2/7/2024).
  I know nothing about “the historical record around the ratification and implementation of the 14th Amendment,” which I imagine will rightly be the focus of oral arguments. Nor can I speak to technical questions over who (the courts? the congress? state officials? the political parties?) has the duty to qualify/disqualify presidential candidates.
  But claims that the insurrection clause does not apply to presidential candidates or sitting presidents — because they have some sort of unique status (e.g., not an “officer” of the United States, like other public servants or elected officials) — do not ring true to this country’s legal traditions.
  Historically (going back to Anglo-America’s founding in 1607), the only person who would have been exempt from Section 3 of the 14th Amendment, which deals with crimes against the commonwealth, would have been the king, whose royal prerogative sets him above the rule of law — “that Power, Preeminence, or Priviledge, which the King hath over and above other persons, and above the ordinary course of the Common Law, in the right of His Crown” (Thomas Blount, Nomo-Lexikon: A Law-Dictionary, 1670, s.v. Praerogative of the King, n. pag.).
  Yet, even kings take an oath and are bound by a traditional covenant with “the people,” and they break that covenant at their peril. This is how both the 17th-century regicide and 18th-century American Revolutionary War were justified.
 
[ UPDATE ]  On 3/4/2024, SCOTUS decided the Anderson v. Trump case, restoring Donald Trump to the 2024 presidential primary ballots in Colorado, Illinois, Maine and elsewhere, with its ruling that Congress, not individual states, has the power to restrict presidential candidates from running for office under Section 3 of the Fourteenth Amendment. “In its 20-page ruling, the court said Congress has the power to bar someone from federal office — not the states.  ¶   ‘We conclude that states may disqualify persons holding or attempting to hold state office,’ the justices wrote. ‘But states have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the presidency.’” (Dan Cooney, “Read the Supreme Court Ruling Keeping Trump on the 2024 Presidential Ballot,” n. pag.)
  Of note, SCOTUS assiduously avoided the question as to whether or not then-President Trump “engaged in insurrection or rebellion” against the country (Section 3, 14th Amendment), and even though the decision was unanimous, Justices Kagan, Sotomayor and Jackson “all took issue with the further breadth of this ruling, which they argue made it much harder to actually enforce Section 3, saying that Congress has to write a particular statute in order to enforce a part of the Constitution. It’s very unusual.  ¶   These three justices wrote that the other justices crafted this ruling to insulate themselves and Donald Trump. I’m going to read a little bit of what they said.  ¶   They wrote — quote — ‘The majority announces novel rules for how that enforcement must operate. It reaches out to decide Section 3 questions not before us and to foreclose future efforts to disqualify a presidential candidate under that provision. In a sensitive case crying out for judicial restraint, it abandons that course.’  ¶   They are clearly not happy with this, something to remember when we see all these headlines that this was a unanimous ruling.” (William Brangham, “Supreme Court Says Only Congress, Not States, Can Remove Trump from Presidential Ballots”; PBS NewsHour segment, aired 3/4/2024, n. pag.)
  As a result, “Some election observers have warned that a ruling requiring congressional action to implement Section 3 could leave the door open to a renewed fight over trying to use the provision to disqualify Trump in the event he wins the election. In one scenario, a Democratic-controlled Congress could try to reject certifying Trump’s election on Jan. 6, 2025, under the clause.  ¶   The issue then could return to the court, possibly in the midst of a full-blown constitutional crisis.” (“Supreme Court Restores Trump to 2024 Presidential Primary Ballots,” n. pag.)
  Scholars believe that SCOTUS was “‘trying to foreclose an effort to disqualify Trump after he wins,’ said Ned Foley, a constitutional law expert from Ohio State University. ‘But they didn’t do it clearly enough.’  ¶   The lack of clarity, he continued, has sparked a debate: ‘Is there power in Congress to consider the [disqualification] issue in January?’” (qtd. in “‘They Didn’t Do It Clearly Enough’: SCOTUS Ruling Prompts Worries of Another Jan. 6 Crisis / Experts are debating the potential for more turmoil the next time Congress meets to count electoral votes” by Kyle Cheney and Josh Gerstein; POLITICO, 3/4/2024)
  “If Democrats determine that Trump is ineligible to hold office, they could conclude that his electoral votes were not ‘regularly given’ and mount objections on Jan. 6, 2025. However, some experts said such a strained reading of the Supreme Court’s ruling would be akin to the fringe theories espoused by Trump’s allies three years ago.” “One reason the justices may have shied away from explicitly limiting Congress to legislation to enforce the ban on insurrectionists is that the House and Senate have historically been considered to have broad authority to resolve disputes over whom to seat, including questions about qualifications. In 1870, former Confederate officer Zebulon Vance was appointed to a Senate seat from North Carolina, but the Senate refused to admit him due to his role in the Civil War. After an amnesty, he was elected to the Senate in 1878 and later took his seat.  ¶   The court’s opinion Monday [3/4/2024] referred to this process as part of the ‘unique powers’ of the House and Senate under the Constitution.” (Kyle Cheney and Josh Gerstein, n. pag.)
  Plus, Section 3 of the 14th Amendment explicitly states that “Congress may by a vote of two-thirds of each House, remove such disability” (disqualification for office) from those “who, having previously taken an oath ... shall have engaged in insurrection or rebellion ... or given aid or comfort to the enemies” of the United States. So SCOTUS’s assignment to Congress of the final decision concerning former-President Trump’s eligibility for a second term is not unexpected.
  FWIW, I personally do not believe anything in Section 3 prevents Donald Trump from running for office, and I do not believe he should be preemptively removed from the primary ballot. But then, I believe in one-person-one-vote liberal democracy, and it is clear that the majority of primary GOP voters want Mr. Trump to be their party’s nominee!
  That said, I do believe that, having engaged in rebellious assembly, the former-President is ineligible to hold elective office again under Section 3 of the 14th Amendment, unless absolved of this by Congress. Should he win the presidential election in November 2024, Congress will have to address this potentially chaotic issue head-on.
  Adam Wren has pointed out that SCOTUS’s Anderson v. Trump ruling “was significant in another way. It exposed the limitations of a critical component of the Democratic case against Trump: that the ex-president was and is bad for democracy. While the justices did not rule on whether Trump engaged in an insurrection in his effort to overturn the results of the 2020 election, they rejected the effort by his critics to disqualify him on those grounds. It comes at a time where recent polling shows Democrats have struggled to portray Trump as a threat to democratic governance.  ¶   A recent CBS News YouGov poll found that only 34 percent of registered voters say democracy and the rule of law will be safe only if Biden wins, just one percentage point more than those who say the same for Trump. That’s an almost even split on an issue that Biden and his advisers have said will animate his campaign.” (“Dems Have a Problem with their Democracy Argument, Not with the Supreme Court: The court’s ruling made clear that Democrats are going to have to make their case against Trump at the ballot box,” n. pag.)
  I have long felt that the Democrats’ framing of this divide as “democracy vs. autocracy” misses the mark. IMO, the real issue has to do with competing visions of U.S. democracy: that is, what’s known as “liberal democracy” vs. the New Right’s “postliberal democracy” (or “illiberal democracy”). This ideological battle does, I believe, motivate voters across the political spectrum, and is what will make our forthcoming debate over insurrection (and “the truth about Jan. 6”) so contentious.
  POLITICO has done some first-rate reporting on the conservative counter-establishment’s model of postliberal democracy, including Ian Ward’s “Is There Something More Radical than MAGA? J.D. Vance Is Dreaming It: In a candid series of conversations, Vance revealed an ominous philosophy behind his first year in office” (POLITICO, 3/15/2024). According to Ward, Senator “Vance does not believe that four more years of Trump will be enough time to realize his vision of America, but he believes that electing Trump represents the only hope that Americans have for getting off the path to literal civilization collapse. And he is prepared to go to extreme — and possibly unconstitutional — lengths to ensure that outcome. [...] Vance has suggested that a second-term President Trump should summarily fire a significant number of midlevel federal bureaucrats, and if the Supreme Court [intervenes] to stop him, he should openly defy its order. [...] I asked him to explain.  ¶   ‘For me, this is not a limited-government thing — this is a democracy thing....’” (Ian Ward, n. pag.)
  Of note, Senator Vance has “gone out of his way to inject New Right intellectual ideas into the conservative mainstream in Washington. In May 2023, for instance, Vance spoke on a panel in Washington with the Catholic philosopher Patrick Deneen, whose most recent book called on conservatives to carry out a ‘regime change’ in the U.S. to replace liberal democracy with an avowedly conservative ‘post-liberal order.’ (At the event, Vance — who converted to Catholicism in 2019 — identified himself as a member of the ‘postliberal right’ and said that he views his role in Congress as ‘explicitly anti-regime.’)” (Ian Ward, n. pag.)
  Ward earlier reported on Deneen’s model of postliberal democracy (“aristopopulism,” where the state is “led by a new class of conservative elites who share the values of non-elites and govern in their interests”) in “‘I Don’t Want to Violently Overthrow the Government. I Want Something Far More Revolutionary.’ / Republican politicians are embracing the ‘postliberal’ ideas of Patrick Deneen. But just what is he calling for?” by Ian Ward (POLITICO, 6/8/2023).
  Contrast their postliberal doctrine with President Joe Biden’s model of liberal democracy, as summarized in “Jake Sullivan’s Revolution: Globalization and free markets had time to prove themselves. Now, a new ‘Bidenism’ is emerging” by Alexander Ward (POLITICO, 2/19/2024). Like their antiliberal antagonists, liberal Democrats such as Sullivan have also recognized that it is “time to move on” from “establishment orthodoxies” about globalization as a force for good, etc.
  As such, the populist clash over U.S. regime change — and whether or not we engage “in insurrection or rebellion” to attain it — is forthcoming, like it or not.
  For another perspective on the challenges of doing democracy in this “time of great peril as well as great promise,” see “Why Democracy vs. Autocracy Misses the Point: Artificial Intelligence & Equality Initiative” by Jean-Marie Guéhenno (posted to Carnegie Council for Ethics in International Affairs [CCEIA] website, 5/3/2022). Guéhenno argues that “The institutions we built in the pre-data age are soon going to be completely overwhelmed, and thinking in terms of the old categories of democracies versus autocracies misses all the new challenges that they will have to face. [...] The current revolution of data and algorithms is redistributing power in a way that cannot be compared to any historical shift.” “We see already how algorithms are reshaping politics. Social media has created self-contained tribes which do not speak to each other. The most important thing in democracy is not the vote itself, but the process of deliberation before the vote, and social media is quickly fragmenting the common ground on which such deliberations have been built.”
  Guéhenno concludes: “I don’t have the answers: I believe no human mind can anticipate the extent of the transformations that are going to happen. Indeed, I think the very notion that you can know today what will be the right institutions for the future is hubristic. The best institutions (and people) will be those that are most adaptable.” I agree.

Re. the mushrooming movement for gun control “policies ‘rooted in science and public health, not guesswork’”: “Bonta Off to Fast Start in State AG’s Office” (San Diego Union-Tribune editorial, 4/30/2021, p. B4), retitled “Sharing Gun Data Will Help Shape Better Laws and Make State Safer” for online posting.

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“Study Shows Majority of Gun Owners Support Specific Gun Safety Policies: ‘This is not as partisan an issue as it’s perceived, and this is not as controversial an issue as it is perceived,’ said Michael Siegel, who led the research” by Madison Fernandez (posted to POLITICO’s website, 10/19/2022).
  This study of gun owners is evidence that “voter attitudes about gun policy aren’t as divided as they seem.” (Madison Fernandez, n. pag.)
  “Red flag laws, universal background checks, required permits for the purchase or possession of a gun and violent misdemeanor laws are among those that win support from gun owners, according to the polling. Altogether, those policies have the potential to reduce firearm homicide rates by as much as 28 percent, the study says. Additionally, when specific provisions are included in gun laws, support from gun owners increases. Respondents also said they don’t believe there’s an ‘inherent conflict between the constitutional protection of gun rights and new laws designed to keep guns out of the hands of people who are at high risk for violence.’
  “A law prohibiting gun possession by those convicted of a domestic violence crime has the highest support among gun owners (78 percent). Republican gun owners support that measure at the same level. Republican respondents also supported prohibiting gun possession by people subject to a domestic violence restraining order (75 percent) and requiring background checks for concealed carry permits (71 percent).
  “But only one-third of gun owners support a ban on assault weapons. That support is even lower among Republican gun owners: 16 percent. Sixteen percent of Republican gun owners support a ban on high-capacity ammunition magazines, while 29 percent of gun owners overall said they support such a measure.
  “Siegel said this research should signal to lawmakers that ‘you don’t have to go back to your state and pass 20 different laws and try to regulate every single aspect of firearms, you just have to go back and pass a few laws that fulfill the principles that both gun owners and non-gun owners have.’” (Madison Fernandez, n. pag.)

Again re. the quest for effective gun control “policies ‘rooted in science and public health, not guesswork’”:
  The June/July 2023 issue of the scrappy independent magazine out of Wisconsin, The Progressive, ran (vol. 87, no. 3, pp. 46–47) an excerpt from a study suggesting that corporate news distorts gun violence, which sent me scrambling to find the full piece: “Not Shooting Straight: Corporate Media Gives Mass Shootings Blanket Coverage, While Missing Community-Level Gun Violence” by Shealeigh Voitl, with Sam Peacock (Project Censored website, posted 4/20/2023; accessed 6/29/2023).
  My apologies to all for taking so long getting around to posting this pointer (2/6/2024), but I’m overwhelmed right now by everything that’s going on, and this is the best I can do!
  Voitl makes the provocative claim that “Corporate reporting on gun violence often marginalizes community-based solutions, because journalists typically favor sources with official, bureaucratic statuses, such as current and former law enforcement officers and elected officials. As a result, the establishment press typically fails to treat community leaders and activists, whose statuses are unofficial, as newsworthy actors or commentators, negatively impacting coverage of community gun violence.” “This skewed coverage shapes the public’s understanding of American gun violence, undermining popular support for community programs that treat it as an urgent public health issue.” (Shealeigh Voitl, 46)
  According to Voitl, this distorted media coverage over-emphasizes gun legislation, “never mentioning funding for violence intervention programs geared toward combating community-level gun violence.”
  I, too, have come to question the relentless focus on legislative fixes which, even when influenced by grassroots activism, are often received as more ineffective top-down mandates from an out-of-touch government, which a growing number of USers no longer trust to act on behalf of the common good.

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For another perspective on the need for shifting focus in order to find better solutions to this country’s seemingly intractable problem of gun violence, see the PBS NewsHour interview with Dr. Jonathan Metzl, director of Medicine, Health and Society at Vanderbilt University and author of the recently-released What We’ve Become: Living and Dying in a Country of Arms: “Psychiatrist Advocates for Reforming U.S. Approach to Gun Safety” (aired 1/29/2024).
  Like Voitl, Metzl advocates for “improving community structures and improving community safety,” asking “What would it mean to invest in communities and really look at the upstream drivers not just of gun violence, but the upstream drivers of why people feel like they need to carry guns in public in the first place?”

This Web page leans into puncturing myths about America’s “historical tradition of firearm regulation” which are so well-established in popular culture that an ideological postmodern SCOTUS has written them into constitutional law.
  But the myth-making around gun violence doesn’t stop here. New myths — mostly pushed by the gun industry, conservative media, and partisan politicians, and amplified by social media — are gaining ground, and require fact-checking by others more qualified than I.
  In the myth-busting spirit, I’m happy to draw attention to a fascinating recent addition to this genre: “Gun Violence Is Actually Worse in Red States. It’s Not Even Close: America’s regions are poles apart when it comes to gun deaths and the cultural and ideological forces that drive them” by Colin Woodard (POLITICO, 4/23/2023).
  Woodard’s title pretty much sums up his study and findings.
  But I want also to highlight his conclusion from all this: “Building coalitions for gun reform at both the state and federal level would benefit from regionally tailored messaging that acknowledged traditions and attitudes around guns and the appropriate use of deadly violence are much deeper than mere party allegiance.” (Colin Woodard, n. pag.)
  When confronting such divisive identity topics (our American heritage & civil rights), we really do need to get beyond partisan either-or positioning, to a recognition of the heterogeneity masked by most of our cherished cultural traditions.
  Elsewhere on this page, I have tried to show that diversity has always been with us, even when it hasn’t looked like it on the surface.
  Pluralism is daunting at the best of times, especially for democracies, but the opportunities for forging innovative and lasting both/and alliances are unmatched.
  And while we’re on the subject of finding “new ways to connect and highlight commonalities rather than differences,” I have another recommendation to make: “The Expiration of Title 42 Is a Reality Check: Immigration reform is dead. Time to start over” by Justin Gest (POLITICO, 5/12/2023).
  Gest’s call for more critical pluralism when we need to make policy concerning emotion-driven topics (like the right to keep and bear arms) suggests the sort of practical wisdom we will need if we are to make real headway on gun reform.
  Rich Lowry makes a related point in his op-ed, “Obama Is Wrong About the Media: America is divided because of conflicts over principles, not facts” (POLITICO, 5/16/2023), in which he defends “our diverse, clamorous media environment.”
  According to Lowry, former President Obama “uses gun control as example of an issue where if we had a similar factual framework, we might have a better debate. He cites higher levels of U.S. gun violence than other countries as a predicate we should all accept, but that fact isn’t really in dispute.  ¶   His use of guns as an example of the lack of common information is telling, although not in the way he intends. He gives zero indication of any awareness of how advocates of gun control often believe in and propagate myths about guns, in fact they often have no idea what they’re talking about on elemental matters.  ¶   They tend to believe that AR-15s are more powerful than other rifles, when the opposite is the case, and think they fire more rapidly than handguns when they don’t. These advocates show no awareness that rifles of all types account for only a tiny proportion of gun violence. They inveigh against the ‘gun show loophole,’ when people buying guns at gun shows have to pass background checks. They rue that people can buy guns on the internet without background checks, when this also isn’t the case. And so on.  ¶   If every media outlet in the country stuck to what gun-control activists consider the truth, and there was no conservative media and specialized gun publications, Twitter accounts, and substacks to push back, the public would be enormously ill-served. As is, most major media outlets partake of these misconceptions, or don’t push back against them.  ¶   If groupthink is still a problem today, imagine how bad it once was, and how powerful it would be if we had less media rather than more. This gets to the crux of the matter.  ¶   We should realize that a relatively small set of people inevitably won’t have the knowledge and judgment to get all or even most of the big questions right, and it’s better to have everything litigated and argued about in a chaotic and permeable media ecosystem with all sorts of different formats and voices.” (n. pag.)

+

And another call for crafting “a fusion politics” able to deliver real (not just rhetorical) populist reforms: “America’s Poverty Is Built by Design: How did the U.S. become a land of economic extremes with the rich getting richer while the working poor grind it out? Deliberately” by Sheryll Cashin (POLITICO, 5/21/2023).
  Cashin’s focus here is on dismantling the systems “rigged to favor people who are already advantaged,” but her concluding example of a new-style movement of engaged citizens is one that has coalesced in response to the scourge of gun violence in our communities: “In the final months of his life, Dr. King envisioned a national Poor People’s Campaign that intentionally built a multiracial coalition to demand an economic bill of rights. In the 2010s, Reverend William Barber II successfully led the Moral Mondays movement in North Carolina and recently revived a Poor People’s Campaign that brings conservative poor whites into the movement for economic fairness. The North Carolina movement paid off in 2023 expansions to Medicaid in the state, for example. They are a sign of hope in a nation riven by division, racism and hate. I see traction for a bold politics that joins the aspirations of all economically oppressed people, similar to the exciting rhetoric and moral claims of the new-South ‘Justins’ who are building multiracial power in Tennessee by speaking to a rainbow of humans seeking freedom from gun violence and oppression of all kinds.” (n. pag.)

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STUDIES > the original intent of Anglo-America’s founding gun & militia laws

SUMMARY The newfangled constitutional right of the multitude to bear arms “is inconsistent with the Nation’s historical tradition of firearm regulation,” as I have outlined it here.  ::  Armigerous entitlements have never — until now (21st century) — been extended to the multitude. Historically, gun ownership by the multitude of persons was always a privilege (or liberty), not a right.  ::  Moreover, individualizing The Second Amendment, as we now do, corrupts the original public meaning and “intendment” of the constitutional provision. The true impact of The Second Amendment was that it revolutionized “the Nation’s historical tradition of firearm regulation” by shifting the royal prerogative (Prærogativa Regis) over “All kind of Arming” from the monarch (and/or the Crown’s surrogates) to “the people” (the body politic in a republic).

 

First Published:  23 November 2019
Revised (substantive):  26 April 2024

 

Opening quotation markA 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.Closing quotation mark

— The Second Amendment to the Constitution of the United States of America, as published in 1809 (by order of the Virginia state legislature) in one of the earliest printed collections of constitutional and statutory law, The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619 (1st edn., 4 vols., 1809–1814, 1.27), edited by the Richmond councilman, clerk of the Superior Court of Chancery for the Richmond District, and deputy adjutant general of Virginia, William Waller Hening (1767?–1828).
     Click/tap here to open a second-window aside with Hening’s biography.
     Click/tap here to view a series of images documenting the postmodern shift away from this original public meaning of the Second Amendment.

The Missing Historical Context: Anglo-American Gun Laws and the Original Intent of the Second Amendment

S O R R Y,  but this page is still under construction.

17th-century head-piece showing six boys with farm tools, by Wenceslaus Hollar

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B Y   W A Y   O F   I N T R O D U C T I O N

In this forthcoming study, I argue that the individual right to keep and bear arms, as popularized by the NRA, SCOTUS, etc. — e.g., “The Bill of Rights grants citizens the right to bear arms to protect themselves against a potential tyrannical government.” — is a postmodern invention.

It is my opinion that the Second Amendment (which developed from a rich body of militia & gun law dating back over a hundred years in the Anglo-American colonies) was not originally about the individual’s right “to keep and bear arms,” but about states’ rights to maintain an armed force (“a well regulated militia”) for the “better protection and defence of the country against invasions and insurrections” (Ordinances Passed at a Convention Held at the Town of Richmond, in the Colony of Virginia, on Monday the 17th of July, 1775, p. 3).

From this country’s founding in 1607, sedition was as much on the minds of the Anglo-American governing class as was tyranny. Despite what 21st-century legislators such as Rep. Matt Gaetz (R-Fla.) believe:

It’s not about hunting. It’s not about recreation. It’s not about sports. The Second Amendment is about maintaining within the citizenry the ability to maintain an armed rebellion against the government, if that becomes necessary.
     I hope it never does.

(Rep. Matt Gaetz [R-Fla.], qtd. by Lisa Desjardins in her 5/28/2021 reporting for the PBS NewsHour, “Why Efforts to Establish a Commission to Investigate the Jan. 6 Insurrection Failed”)

U.S. citizens have no constitutional right to armed insurrection.

Indeed, the 21st-century rise of antigovernment militias such as the Oath Keepers (with military veterans and law enforcement officers in its ranks) would have greatly aggrieved the founding fathers of the United States. Among the first measures adopted by the American people in May 1777, following the transition from regal to republican government, was the act requiring that all free born males, above 16 years old, take “the oath or affirmation of allegiance and fidelity” to the new commonwealth, which included denouncing “all treasons or traiterous conspiracies which I now or hereafter shall know to be formed against this or any of the United States of America.” Moreover, this founding statute prescribing the oath of allegiance, enacted in the first year of the commonwealth, required that all those who refused to take the oath be reported “to the county lieutenant, or chief commanding officer of the militia, who is hereby authorised and directed forthwith to cause such recusants to be disarmed.”

An act to oblige the free male inhabitants of this state above a certain age to give assurance of Allegiance to the same, and for other purposes.

WHEREAS allegiance and protection are reciprocal, and those who will not bear the former are not entitled to the benefits of the latter, Therefore Be it enacted by the General Assembly, that all free born male inhabitants of this state, above the age of sixteen years, except imported servants during the time of their service, shall, on or before the tenth day of October next, take and subscribe the following oath or affirmation before some one of the justices of the peace of the county, city, or borough, where they shall respectively inhabit; and the said justice shall give a certificate thereof to every such person, and the said oath or affirmation shall be as followeth, viz. “I do swear or affirm, that I renounce and refuse all allegiance to George the third, king of Great Britain, his heirs and successours, and that I will be faithful and bear true allegiance to the commonwealth of Virginia, as a free and independent state, and that I will not, at any time, do, or cause to be done, any matter or thing that will be prejudicial or injurious to the freedom and independence thereof, as declared by congress; and also, that I will discover and make known to some one justice of the peace for the said state, all treasons or traiterous conspiracies which I now or hereafter shall know to be formed against this or any of the United States of America.” And the form of the said certificate shall be as follows, to wit: “I do hereby certify, that ____________________ hath taken and subscribed the oath or affirmation of allegiance and fidelity, as directed by an act of general assembly intituled An act to oblige the free male inhabitants of this state above a certain age to give assurance of allegiance to the same, and for other purposes. Witness my hand and seal, this _____ day of __________   /  A. B.”
     And be it farther enacted, That the justice of the peace before whom such oath or affirmation shall be subscribed shall keep fair registers of the names of the persons so sworn or affirmed, and the time when; and shall, on or before the first day of January in every year, transmit, in writing, under his hand and seal, to the clerk of the court of the county, city, or borough, a true list of the names of those who, within the same year, have so sworn or affirmed before them respectively.
     And be it farther enacted, by the authority aforesaid, That within one month after the passing of this act, or at the next succeeding court, the court of every county in this commonwealth shall appoint some of their members to make a tour of the county, and tender the oath or affirmation aforesaid to every free born male person above the age of sixteen years, except as before excepted; and that in the certificate directed to be returned, of those who take the oath or affirmation, shall be mentioned the names of such as refuse. And the justices tendering such oath or affirmation are hereby directed to deliver a list of the names of such recusants to the county lieutenant, or chief commanding officer of the militia, who is hereby authorised and directed forthwith to cause such recusants to be disarmed.
     Provided, That the person so disarmed shall, nevertheless, be obliged to attend musters, but shall be exempted from the fines imposed for appearing at such musters without arms, accoutrements, and ammunition.
     And be it farther enacted, That every person above the age before mentioned, except as before excepted, refusing or neglecting to take and subscribe the oath or affirmation aforesaid, shall, during the time of such neglect or refusal, be incapable of holding any office in this state, serving on juries, suing for any debts, electing or being elected, or buying lands, tenements, or hereditaments.
     And be it farther enacted, That all persons coming from any of the other United States into this state [Virginia] are hereby required to apply to one of the nearest justices after he enters this state, and take or subscribe an oath or affirmation, renouncing all allegiance to the king of Great Britain, and promising that he will not do any thing prejudicial to the independence of the United States of America, as declared by the general congress; and upon neglecting so to do, he shall be liable to be taken before a justice, who shall tender him the said oath or affirmation, and upon his refusal to take and subscribe the same, the said justice shall, and is hereby required, to commit him to the jail of the county, city, or borough, there to remain without bail or main-prize, until he shall take and subscribe the said oath or affirmation, or give bond and security immediately to depart this commonwealth, which bond shall be payable to the governour, for the time being, for the use of the commonwealth.
     Provided nevertheless, That prisoners of war, regular officers and soldiers in the pay of the continent or of this state, merchants and mariners trading in the ports of this state from foreign powers in amity with the United States, and not become resident, are declared not to be within the intent and meaning of this act.
     And be it farther enacted, That this act shall be publickly read by the sheriff of every county in this commonwealth at the door of the courthouse of his county, on some court day, on or before the first day of September next, and also by every minister of the gospel, or reader, immediately after divine service, at every church or meeting-house where they officiate, on some Sunday within the said time. And every sheriff, minister, or reader, failing so to do, shall forfeit and pay the sum of ten pounds, to be recovered, with costs, by the informer, before the court of the county where the offence shall be committed.

(Chap. III of the Militia Acts “passed by the General Assembly, begun and held at the Capitol, in the city of Williamsburg, on Monday, the fifth day of May, in the year of our Lord one thousand seven hundred and seventy seven, and in the first year of the Commonwealth”; Patrick Henry [yes, he of “Give me liberty, or give me death!” fame] was Virginia’s new governor, having been elected, and the members of the Privy Council chosen, the same day [29 June 1776] on which the state Constitution was adopted)

ornamental graphic calling attention to NEW content

A tradition of rebellious assembly & punishment

Given their postcolonial anxiety about “invasions and insurrections,” our founders’ response to the 6 January 2021 Capitol putsch, perpetrated in part by postmodern Oath Keepers, would have been swift and harsh, as had been the case 100 years earlier, with the pluto-populist uprising of 1676 known as Bacon’s Rebellion, also resulting in government-mandated investigations intended to get at the root of the rebellion, so as to prevent future insurrections. The investigation by King Charles II’s imperial government into the colony’s armed rebellion of 1676–77 set the Crown at odds with Virginia’s governing class, which had sided with Governor Sir William Berkeley during Bacon’s War.

Indeed, the crown and all [other royal] governors after Berkeley saw matters in Virginia quite differently than did the colonial elite. Although not wanting to diminish royal revenue on the tobacco trade, the crown nevertheless believed, in the wake of 1676, that the big planters in Virginia had squeezed the smaller planters and freedmen to the point of rebellion. They further believed that the wealthy had monopolized the best land near the rivers (and thus the loading points for English merchant vessels), leaving only dangerous frontier territory for the lesser men; that the elite had refused to allow the frontiersmen to fight the Indians in the way the frontiersmen saw fit (destroying both enemy and friendly tribes indiscriminately); that they had levied a regressive poll tax; and that Berkeley had kept his cronies in power for years by refusing to call new elections to the House of Burgesses from 1661 to 1676.

(Susan Scott Parrish, Introduction, The History and Present State of Virginia, by Robert Beverley. A New Edition ..., 2013, xvii)

But the Stuart monarchy also bore responsibility for Bacon’s Rebellion.

Bacon’s Rebellion is explicable only in the light of the basic solidity attained by Virginia’s provincial institutions during twenty years of imposed or control stability followed by a fifteen-year transition to consociational stability and then by thirty years of effective government from the 1640s to the early 1670s.
     Between 1660 and 1675 Charles II thoughtlessly jeopardized these gains. He gutted Berkeley’s mercantilist program for diversified economic growth, and the tobacco economy plummeted into depression. He gave away the Northern Neck, and the Virginians paid for it. He “granted all of Virginia to Lords Arlington and Culpeper for thirty-one years,” and the Virginians paid to buy it back. Finally, he twice humiliated Berkeley by ordering the construction of useless and expensive forts at Point Comfort, and the Virginians paid for them. As the direct result of Charles II’s actions, provincial taxes soared to extraordinary per capita levels between 1671 and 1675. As late as 1673 Berkeley was able to placate a group of fourteen Surry County planters protesting the colony’s high taxes, and yet the crown’s action had seriously diminished the governor’s capacity for political brokerage. When frenzied fear of Indian attack swept the frontier settlements in 1675 and 1676, this fact suddenly became apparent.
     Angry planters for whom any Indian was a fair target found their leader in Nathaniel Bacon, Jr., who initially sought only a legal commission to lead a volunteer army of frontier militiamen and their officers to fight Indians, any Indians. Had Berkeley quietly sacrificed the colony’s peaceful tributary Indian allies to the frontiersmen’s wrath, he might have given Bacon a commission and let the militiamen dissipate their energies in ineffective marches through the back-country. Instead, Berkeley was reluctant to endorse treachery against the Indians, and Bacon marched anyway. Finally, in May and June, Berkeley made a series of tactical mistakes that forced Bacon into open rebellion and brought Virginia several months of avoidable violence. An Indian campaign became a civil war that neither side wanted.
     The peak of Bacon’s popularity came in August [1676], when Berkeley shocked many prominent planters by fleeing across Chesapeake Bay to Virginia’s Eastern Shore when a party of Indians roamed the peninsula between the York and Rappahannock rivers. But Bacon “badly overplayed his hand” when he burned Jamestown and began, early in October, accepting servants and slaves into his army. Bacon’s recruitment of servants and slaves made “all masters his Enimies,” and his support promptly withered among the militiamen who had followed him to fight Indians. Bacon died on October 26, and within a few weeks the entire rebellion collapsed.
     Berkeley dealt unmercifully with Bacon’s principal associates, squabbled with both the king’s investigating commissioners and Lieutenant Governor Herbert Jeffreys, and eventually was recalled to England where he died in 1677. It is noteworthy that Bacon’s Rebellion had scarcely any lasting impact on Virginia. The rebels neither sought institutional change nor produced a revolutionary program. Historians have never been able to agree about what relationship, if any, the rebellion had to social change in the second half of the seventeenth century. The rebellion left few lingering animosities, and early in the 1680s Berkeley’s old loyalists and Bacon’s old followers closed ranks to oppose Stuart colonial policies in Virginia. The crown’s new governors — Thomas Culpeper, Francis Howard, and Sir Edmund Andros — did not identify themselves with the colony as had Wyatt, Berkeley, and Richard Bennett and were frequently opposed by Virginia’s councilors, burgesses, county leaders, and populace. The big change after 1680 was not in Virginia’s internal stability but in its relationship to the London government.

(Jon Kukla, “Order and Chaos in Early America: Political and Social Stability in Pre-Restoration Virginia,” 293–296)

The 1680s saw Virginia’s ruling class restored to power, along with new struggles over Virginia’s self-governance. Remarkably, given the 17th century’s radical assertions about Englishmen’s storied “Liberties and Privileges,” even the reform-oriented Grand Assembly of June 1676 (misleadingly dubbed “Bacon’s Assembly” because it was “packt” with radical republicans) actively suppressed riotous assembly (and all disaffected speech leading up to such assembly), enacting a riot law which would be re-enacted by later Assemblies, of varying political persuasions, after undergoing a series of circumstantial revisions.

WHEREAS of late there hath bin many unlawfull tumults, routs and riotts in divers parts of this country, for prevention of such insolences, and punishing offenders in that kind, the lawes of England hath well provided if the same bee put into due execution, Bee it therefore enacted by the governour, councell and burgesses of this grand assembly, and by the authoritie thereof, that every respective officer and magistrate within this countrey, civill and military, from a constable to the highest civill magistrate, and from the lowest to the highest militia officer, be hereby impowered and strictly commanded for the suppressing and punishing all such unlawfull assemblies, routs, riotts and tumults, to use all lawfull wayes, authoritie, power and command, and whosoever shall be at any time disobedient to any the lawfull commands of any such civill or military officer or magistrate either in assisting, suppressing, quieting and punishing of any unlawfull assemblyes, routs or tumults as aforesaid, shall be accounted, judged and punished as mutinous and rebellious. And whereas certain ill disposed and disaffected people of late gathered and may again gather themselves together by beate of drumme, and otherwise in a most apparent rebellious manner, without any authoritie or legall commission, which may prove of very dangerous consequences, Bee it therefore enacted by the authority aforesaid, and the right honourable the governour is requested upon the appearance of any such unlawfull assemblies and rebellions, when or whereof soever within this country such shall happen, that hee will please with all possible expedition to raise sufficient force at the publique charge to suppress the same, and inflict condigne punishment upon the offenders, which will conduce to the great safety and peace of this country, and enable us the better to defend ourselves against the barbarous and common enemie [i.e., an Indian invasion].

(An Act for Suppressing of Tumults, Routs, &c.; statute enacted “at a Grand Assemblie, holden at James Cittie,” convened 5 June 1676)

Subsequent to suppressing Bacon’s Rebellion of 1676–77, Virginia legislators swiftly moved to criminalize both the defamation and obstruction of government (of both church & state). Throughout Anglo-America’s early-modern period, “scandalous” (seditious) speech and rumor-mongering (especially the spread of “false news”), tending to civil unrest which disturbed the public peace, was heavily penalized.

Notably, the first legislative assembly following Bacon’s Rebellion (convened 20 February 1677) called out women as well as men for speech “tending to rebellion.” Rebel women such as Sarah Grindon, Mrs. Anthony Haviland, Lydia Chisman, and Sarah Drummond had played a prominent political role in the 1676 uprising by fomenting rebellion, thus prompting retaliatory legislative action, although laws and ordinances governing women’s disorderly speech (e.g., punishing female “scolding” with gags and ducking-stools, aka cuckingstool, cokestool, tumbrel, trebuchet, tribuch, and gogingstole) pre-date this, and were customary under English common law, dating back to Saxon times.

CUCKINGSTOOL or COKESTOOL (Tumbrella) Is an Engin invented for the punishment of Scolds and unquiet Women, by Ducking them in the Water, called in ancient time a Tumbrel. Lamb. Eiren. lib. 1. cap. 12. Bracton writes this word Tymborella. Kitchin, (cap. Charge in Court Leet, fol. 13. a.) says, Every one having view of Frank-pledge, ought to have a Pillory, and a Tumbrel. This was in use even in our Saxons time, by whom it was called [non-Latin alphabet], and described to be Cathedra, in qua rixosae mulieres sedentes, aquis demergebantur: And was a punishment anciently inflicted upon Brewers and Bakers transgressing the Laws, who were thereupon, in such a Stool or Chair, to be ducked and immerged in Stercore, some muddy or stinking Pond.

(Thomas Blount, Nomo-Lexikon: A Law-Dictionary, 1670, s.v. Cuckingstool or Cokestool, n. pag.)

TUMBREL, (Tumbrellum, turbichetum,) Is an engine of punishment, which ought to be in every liberty that has view of Frankpledge, for the correction and cooling of Scoldes, and unquiet Women, Kitchin, fo. 13. See Cuckingstool. Item, si aliquis, qui in libertatem nostram, per assensum & consensum Comburgensium nostrorum, admissus fuerit, fecerit aliquod delictum, per quod ad penam publicam seu vile Judicium, ut ad Collistrigium vel Tumbrellum, vel aliquod aliud hujusmodi adjudicatus fuerit, pro perjuro reputabitur, & ipso facto amittet libertatem suam. MS. Codex de LL. Statutis & Confuetud. Burgi villae Mountgom. fo. 11.

(Thomas Blount, Nomo-Lexikon: A Law-Dictionary, 1670, s.v. Tumbrel, n. pag.)

TRIBUCH & TREBUCHET, (Terbichetum) A Tumbrel, Cuckingstole, or Gogingstole. —— Haec omnia concedimus deo & Ecclesiae Sancti Albani, cum Soca & Sacca, ON STRONDE & STREME, ON WUDE & FELD, Toll & Teym, Tribuch, Hamsoken, Murdre, Forestal, Danegeld, Infangenthef & Utfangenthef, Flemenefremthe, Blodwite, Wreck, &c. Carta Joh. Regis, Dat. 11 Junii, Anno 1 Regni.

(Thomas Blount, Nomo-Lexikon: A Law-Dictionary, 1670, s.v. Tribuch and Trebuchet, n. pag.)

And the violent suppression of women’s speech was not limited to high-monarchist “despotick governments.” During the Interregnum (1649–1660), while the Anglo-American colonies were under English parliamentary rule, a Mr. Calvert of Northumberland County, Virginia

had to pay one thousand pounds of tobacco to save his [royalist] wife from thirty lashes on her shoulders for stigmatizing “the [republican] keepers of the liberty of England as rogues, traitors, and rebels.”

(Thomas J. Wertenbaker, Give Me Liberty: The Struggle for Self-Government in Virginia, 68)

In addition to criminalizing seditious and scandalous speech (including speaking or writing disrespectfully of those in authority), Virginia’s first post-insurrection Grand Assembly clamped down on the people’s right to assemble, especially when armed. Because prior liberties “granted to all persons to carry their armes wheresoever they goe” by Virginia’s legislature “in March last, [...] hath beene found to be very prejudiciall to the peace and wellfaire of this colony,” armed assemblies of five or more persons — presumably leading to riot & mutiny — were penalized in 1677:

And for the prevention of seditious and scandulous libells, the usuall fore runners of tumult and rebellion. Bee it enacted by this present grand assembly, and the authority thereof, and it is hereby enacted, that if any person or persons, not being a women [sic] covert shall presume to speake, write, disperse or publish by words, writeing or otherwise, any matter or thing tending to rebellion, or in favour of the late rebells or rebellion, and shall thereof be lawfully convict, then such persons for the ffirst such offence shall be fined one thousand pounds of tobacco and caske, and stand upon the pillory two howers with capitall letters of their crimes affixed on their foreheads or brest, and for such second offence pay double the ffine and stand in the pillory two howres with capitall letters of their crimes fixed as aforesaid, and for the third such offence be prosecuted as a rebell and a tratour to his most sacred majestie. And if any woman covert that comitt such offence as is before recited, then to be whipped on the bare back with twenty lashes, for the ffirst offence, and for the second offence thirty lashes, except she can redeeme herselfe from the said corporall punishments by payment of the ffine or ffines before mentioned, for such first and second offences. And be it farther enacted, that if any woman under covert shall a third tyme committ such offence, to be prosecuted against as a rebell and traytor to his most sacred majestie. And whereas it hath beene frequent for rude and ill disposed persons to contemne and revile authority and magistrates, as well in words as in actions; Bee it therefore enacted by this present grand asssembly, and by the authority thereof, that all and every person and persons that shall from the tyme to come presume to speake and utter mutinous or contemptuous words, or shall by any wayes or meanes abuse the right honourable the governour or any of the councell, justices of the peace or commissionated militia officers, and shall be thereof lawfully convict, shall for his such offence, if against the right honourable the governour, be whipped on the bare back with thirty lashes, or pay eight hundred pounds of tobacco and caske, if against any of the honourable councell, that then he shalbe whipped on the bare back with twenty fowre lashes, or pay six hundred pounds of tobacco and caske, and if against any justice of the peace or comissionate feild officer, then to be whipped on the bare back with twenty lashes, or pay fowre hundred pounds of tobacco and caske, and the like for such second offence, being likewise thereof lawfully convict. And if any person or persons, male or female, shall be convicted a third tyme of such mutany or contemptious or villifying words writeing or otherwise, abuseing or scanduliseing the right honourable the governour or any of the honourable councell or any justice of the peace or comissionated militia ffield officer, then to be whipped on the bare back with thirty nine lashes, and stand in the pillowry two howers, or pay double the before recited ffines, all which said ffines as aforesaid shalbe and belong the one halfe to the informer, if he shall sue for the same, and the other halfe to the county, where the offending party then dwells or resides, which said ffines to be levyed by distresse or otherwise, and collected or destrayned for by the sherriffe or collector for the publique and county levyes. And be it further hereby enacted that the justices of every respective county court be, and are hereby impowered, enjoyned, and obleiged to put this law into effectuall execution upon the penalty of paying double such fines and forfeitures herein meant and intended for every such offence in case they shall refuse, or neglect to put this law into effectuall execution. And whereas by a branch of an act of assembly made in March last [convened on 7 March 1676], liberty is granted to all persons to carry their armes wheresoever they goe, which liberty hath beene found to be very prejudiciall to the peace and wellfaire of this colony. Bee it therefore further enacted by this present grand assembly, and the authority thereof, and it is hereby enacted, that if any person or persons shall, from and after publication of this act, presume to assemble together in armes to the number of five or upwards without being legally called together, that for such convention, or assembling together in armes the number of ffive or upwards, they be held deemed and adjudged as riotous and mutinous, and that they be proceeded against and punished accordingly.

(An Act for the Releife of Such Loyall Persons as Have Suffered Losse by the Late Rebells; statute enacted “at a Grand Assembly, begunn at Green Spring [Governor Berkeley’s plantation],” 20 February 1677)

This 1677 statute was repealed and replaced by legal enactments on 8 June 1680, including:

AND whereas, during the Licentiousness of the late Times [Bacon’s Rebellion of 1676–77], several ill-disposed Persons took upon them to asperse the Government, and defame the Governour and chief Magistrates of the Country, raising false and scandalous Reports, without which the good Subjects could not have been so easily led away, and which cannot but tend to the future Disturbance of the Peace, &c.
     Enacted, THAT whosoever shall maliciously and advisedly by Writing, Speaking, or otherwise, express, publish, utter, or declare any Words, Sentences, or other Thing or Things, to incite or stir up the People to the Dislike of any Person appointed by His Majesty [Charles II] to be Governour or Commander in Chief of the said Colony, or tending to the Dishonour, or Defaming of such Governour or Commander in Chief for the Time being, shall be imprisoned One Year without Bail, and incur such Forfeiture as shall be adjudged, not exceeding the Sum of Five Hundred Pounds to the King, his Heirs, &c.
     AND in like manner, Enacted, That whosoever shall maliciously and advisedly by Writing, Speaking, or otherwise, express, publish, utter, or declare any Words, Sentences, or other Things to incite or stir up the People to the Dislike of His Majesty’s Counsellors, Judges, or other principal Officers within the Colony, tending to the Dishonour or Defaming of the said Counsellors, Judges, or other principal Officers, shall be imprisoned three Months without Bail, and incur such Forfeiture as shall be adjudged, not exceeding the Sum of One Hundred Pounds to his Majesty, his Heirs, &c.

(from An Act of free and general Pardon, Indemnity and Oblivion, 8 June 1680; in An Abridgement of the Publick Laws of Virginia, in Force and Use, June 10. 1720. To which Is Added, for the Ease of the Justices and Military Officers, &c. Precedents of All Matters to Be Issued by Them, Peculiar to those Laws; and Varying from the Precedents in England, ascribed to William Beverley (1696–1756) by Thomas Jefferson, 1st edn., 1722, 12–13)

and

     Enacted, THAT whosoever shall appear in any Church or Chappel in this Colony, whilst the Minister is exercising his ministerial Function, and shall disturb him by Words, or any other manner of Means whatsoever, or shall there appear in any unseemly or undecent Gesture, any Justice, Sheriff or other Officers then present, shall put such Person so offending under Restraint during Divine Service, who shall also for the first Offence be fined Two Hundred Pounds of Tobacco and Cask. And for every such Offence after in the like Quality Five Hundred Pounds of Tobacco and Cask; which Fines shall be Levied by the Sheriff upon the Estate of such Person so offending, by Virtue of a Warrant from a Justice of the Peace.
     SUCH Justice of the Peace who shall refuse or neglect to put this Law into severe Execution, shall be Fined Five Hundred Pounds of Tobacco and Cask, to the use of the Parish for every such Neglect.

(An Act Prohibiting Unlawful Disturbances of Divine Service, 8 June 1680; in An Abridgement of the Publick Laws of Virginia, in Force and Use, June 10. 1720. To which Is Added, for the Ease of the Justices and Military Officers, &c. Precedents of All Matters to Be Issued by Them, Peculiar to those Laws; and Varying from the Precedents in England, ascribed to William Beverley (1696–1756) by Thomas Jefferson, 1st edn., 1722, 13)

Because 400+ armed slaves featured prominently in Bacon’s Rebellion of 1676–77, racialized legislation prohibiting “any negroe or other slave” from arming “himselfe with any club, staffe, gunn, sword or any other weapon of defence or offence,” and from assaulting “any christian,” soon followed as part of the provincial government’s prevention in 1680 of future insurrections. This 1680 legislation, criminalizing black slave rebellion (any slave “lying out” and refusing to be apprehended could now be killed), is one of Anglo-America’s earliest slave codes:

WHEREAS the frequent meeting of considerable numbers of negroe slaves under pretence of feasts and burialls is judged of dangerous consequence; for prevention whereof for the future, Bee it enacted by the kings most excellent majestie by and with the consent of the generall assembly, and it is hereby enacted by the authority aforesaid, that from and after the publication of this law, it shall not be lawfull for any negroe or other slave to carry or arme himselfe with any club, staffe, gunn, sword or any other weapon of defence or offence, nor to goe or depart from of [off] his masters ground without a certificate from his master, mistris or overseer, and such permission not to be granted but upon perticuler and necessary occasions; and every negroe or slave soe offending not haveing a certificate as aforesaid shalbe sent to the next constable, who is hereby enjoyned and required to give the said negroe twenty lashes on his bare back well layd on, and soe sent home to his said master, mistris or overseer. And it is further enacted by the authority aforesaid that if any negroe or other slave shall presume to lift up his hand in opposition against any christian, shall for every such offence, upon due proofe made thereof by the oath of the party before a magistrate, have and receive thirty lashes on his bare back well laid on. And it is hereby further enacted by the authority aforesaid that if any negroe or other slave shall absent himself from his masters service and lye hid and lurking in obscure places, comitting injuries to the inhabitants, and shall resist any person or persons that shalby any lawfull authority be imployed to apprehend and take the said negroe, that then in case of such resistance, it shalbe lawfull for such person or persons to kill the said negroe or slave soe lying out and resisting, and that this law be once every six months published at the respective county courts and parish churches within this colony.

(ACT X, An Act for Preventing Negroes Insurrections; statute enacted “at a Generall Assemblie, begunne at James Cittie,” 8 June 1680)

Civil unrest in Virginia was not so easily crushed, however, and at its next session (November 1682), the House of Burgesses again struggled to suppress rebellion. The earlier An Act for Preventing Negroes Insurrections (June 1680) had required that the law be published at 50 county courts and parish churches, every six months. This method of communication proved insufficient, leaving too many non-compliant Virginians “for want of due notice thereof being taken.” So in 1682, it was deemed necessary to follow up with another slave act, this time mandating that both slave acts be obtained by churchwardens and publicly read in churches twice a year.

WHEREAS a certaine act of assembly held at James Citty the 8th day of June, in the yeare of our Lord 1680, intituled, an act preventing negroes insurrections hath not had its intended effect for want of due notice thereof being taken; It is enacted by the governour, councell and burgesses of this generall assembly, and by the authority thereof, that for the better putting the said act in due execution, the church wardens of each parish in this country at the charge of the parish by the first day of January next provide true coppies of this present and the aforesaid act, and make or cause entry thereof to be made in the register book of the said parish, and that the minister or reader of each parish shall twice every yeare vizt. some one Sunday or Lords day in each of the months of September and March in each parish church or chappell of ease in each parish in the time of divine service, after the reading of the second lesson, read and publish both this present and the aforerecited act under paine such churchwarden minister or reader makeing default, to forfeite each of them six hundred pounds of tobacco, one halfe to the informer and the other halfe to the use of the poore of the said parish. And for the further better preventing such insurrections by negroes or slaves, Bee it likewise enacted by the authority aforesaid, that noe master or overseer knowingly permitt or suffer, without the leave or licence of his or their master or overseer, any negroe or slave not properly belonging to him or them, to remaine or be upon his or their plantation above the space of four houres at any one time, contrary to the intent of the aforerecited act upon paine to forfeite, being thereof lawfully convicted, before some one justice of peace within the county where the fact shall be comitted, by the oath of two witnesses at the least, the summe of two hundred pounds of tobacco in cask for each time soe offending to him or them that will sue for the same, for which the said justice is hereby impowered to award judgment and execution.

(ACT III, An Additionall Act for the Better Preventing Insurrections by Negroes; statute enacted “att a Generall Assembly, begunn att James Citty,” 10 November 1682)

Enlisting Virginia’s religious establishment in political activism had worked before, and it worked again now for “preventing negroes insurrections.” As word spread, black slaves were incentivized to gain their freedom by helping the state put down rebellious assemblies by persons of color.

WHEREAS a Negro Slave, named Will, belonging to Robert Ruffin, of the county of Surry, was signally serviceable in discovering a conspiracy of diverse negros in the said county, for levying war in this colony, for a reward of his fidelity and for encouragement of such services,
     Be it enacted, by the Lieutenant-Governor, Council and Burgesses, of this Generall Assembly, and it is hereby enacted, by the authority of the same, That the said Negro Will, is and shall be forever hereafter free from his slavery, and shall be esteemed, deemed and taken, and is hereby declared to be a free man, and shall enjoy and have all the liberties, priviledges and immunitys of or to a free negro belonging, and shall inhabit, continue and be within this colony and dominion of Virginia, if he think fit to continue therein.
     And be it further enacted, by the authority aforesaid, That the sume of forty pounds sterling be paid and satisfyed to the said Robert Ruffin for the price of the said negro Will, made free as above said, by Elizabeth Harrison, widow and administratrix of the goods and chattles, rights and credits, of Benjamin Harrison, the younger gentleman, decd. [deceased] late treasurer of the public impositions of this colony, out of the public moneys in her hands.

(ACT XVI, An Act to Set Free Will, a Negro Belonging to Robert Ruffin; statute enacted “at a General Assembly, begun and holden at the capitol, in the city of Williamsburg,” 25 October 1710)

In addition to rebellious black slaves persisting in their “levying war in this colony,” the provincial government in the early 1680s was dealing with renewed civil unrest from substantial numbers of white settlers and servants, “full of expectations but frustrated by economic realities, [who] stood ready to blame Indians and the provincial government for their inability to establish themselves as planters and patriarchs.” (James D. Rice, Tales from a Revolution: Bacon’s Rebellion and the Transformation of Early America, 163) By November 1682, their new grievances were the direct result of legislation enacted by Virginia’s House of Burgesses in 1680.

The troubles produced by Bacon’s rebellion, in 1676, had scarcely subsided, when new commotions arose. By an act of 1680, “for cohabitation and encouragemen of trade and manufacture,” the assembly endeavoured to carry into effect what had long been a favourite project with many of the colonists, that of establishing towns. To these TOWNS, upon paper, all vessels arriving in the colony were restricted, both in the delivery of their merchandize, and in the receipt of return cargoes; and the planters were compelled to carry all their tobacco and other produce, for exportation, to the same places. While strong inducements were held out to comply with the law, severe penalties were imposed for its infraction: ... The want of accommodation, and proper houses for deposit, added to the difficulty of transporting produce to those places, rendered the execution of the law highly inconvenient, if not wholly impracticable. Masters of vessels, instead of being permitted to coast along our navigable rivers, as formerly, and dispose of their goods, and receive on board the produce of the country, as might be most convenient to their customers, were confined to certain ports, where there was neither shelter for themselves, nor their merchandize. Some absolutely refused to comply with the act, and traded as usual, others abandoned the voyage. Such was the effect, upon the revenue in England, that the law was suspended, by the king [Charles II] in council, in 1681: ... But violations of the law, in Virginia, had led to prosecutions for the penalties. These were chiefly carried on by interested persons. The low price of tobacco, consequent on this stagnation of trade, the privations of the colonists, and the vexatious prosecutions commenced under the act for establishing towns, excited a general spirit of disaffection. To enhance the price of tobacco, a suspension of its cultivation, then called a cessation, was deemed the best expedient. Petitions to the governor [Thomas, Lord Culpeper, baron of Thoresway (1635–1689)], from several counties, to call an assembly, for that purpose, were circulated, and obtained many signatures. An assembly was summoned by the governor, without advice of council, to meet in April 1682. It met accordingly, and after some time spent in fruitless debates, it was dissolved, and another [resummoned]. Disappointed in their hopes of relief from the assembly, a number of the inhabitants of Gloucester, New-Kent, and Middlesex, which were the petitioning counties, for the call of an assembly, riotously proceeded to cutting up all tobacco plants; to prevent which, several proclamations were issued by the deputy governor. But the principal actors being obscure persons, no prosecutions were instituted, hoping that time would discover the authors and abettors of these outrages: ... This plant-cutting, gave rise to the act of April 1684, by [which] such offences are declared high treason....

(W. W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, 4 vols., new edn., 1820–1823, 3.541–542)

Further restrictions on freedom of speech, and of the press, followed in November 1682 with another sedition statute, this time criminalizing anyone who opined in public that the acts of the Virginia General Assembly were not binding. At stake, was the hard-won autonomy of the colonial legislature, then struggling against the restored monarchy’s reassertion of royal prerogative.

Throughout the 1680s and the 1690s, royal officials purposefully undercut the General Assembly such that it lost much of its unbridled authority. Annual sessions were a thing of the past. Gone too was the its long presumed “right” to sit as the colony’s highest court of last resort. Its control of the purse was diminished. Internally the House of Burgesses ceded a measure of control over its choice of Speakers and clerks, and it was forced to accept new forms of statutory language. Its nearly absolute right of legislating disappeared. For a while it was forbidden to sit, except in dire emergencies, without explicit orders from the king and then only to adopt bills drafted by the governor and Council of State with approval from London. When there were no General Assemblies, the governor and the Council ruled by proclamation, which was a perennial rub that chafed but about which the burgesses could do little except howl. Politics took on a different coloration. Local issues had dominated ever since 1619 but with the Crown’s reach for greater control, those concerns receded as the game of politics increasingly moved toward broader imperial issues and the elite’s efforts to defend its position.
     Revising the statutes grew into one of those issues. Virginia politicians and English officials warmed to legal reforms but for different reasons. To the home government compelling a revisal to its liking became important to a vigorous reassertion of the royal prerogative and another way of weakening the General Assembly. After 1676 [Bacon’s Rebellion], King Charles required session laws be sent to London following every meeting of the Assembly. His underlings also pressed for some sort of compilation of the existing acts for their determination of which ones intruded on the king’s authority and which laws were necessary to make Virginia conform to the Crown’s colonial policies. To that end they relied on the governor and councillors to draw up periodic compilations and then to compel the burgesses’ concurrence. At first the Virginians regarded reform as a way to improve their law as they had done repeatedly since the 1630s, but soon they saw reform not only as a means to obstruct the Crown’s aggressiveness but also as a device in their struggle to guard against royal overreach.

(Warren M. Billings, Statute Law in Colonial Virginia, 71–72)

This decades-long power struggle between Anglo-American elites and a king “in search of ample permanent revenues, a search that inspired the Crown to bind Virginia and the other colonies commercially and politically into an imperial community centered on London” (W. M. Billings, Statute Law in Colonial Virginia, 70) was prefigured in the Privy Council’s rebranding of Virginia’s House of Burgesses as “the General Assembly,” beginning with the assembly session convened on 8 June 1680 (to this point, the legislative body had been known by the more imposing title, “the Grand Assembly,” awarding it the highest rank in the sociopolitical order).

During the same November 1682 assembly session at which burgesses enacted the second slave act for “preventing negroes insurrections,” burgesses asserted the validity of their laws and government, criminalizing those Virginians who would infringe on or obstruct the legislature’s free exercise of “ancient” privileges.

THIS assembly takeing into their serious consideration that divers ill disposed persons, wickedly intending to invallid the lawes of this country and bring them into contempt and disrepute, have moved and stirred certain doubts whether there be any lawes in force and efficacy soe as to be binding to his majesties subjects, being in this his majesties dominion of Virginia. For preventing of such mischeifes, Bee it enacted by the governour, councill and burgesses of this generall assembly, and it is hereby enacted and declared, that if any person or persons shall at any time or times after the publishing of this present act maliciously and advisedly utter, publish and declare by words or writeing, that the acts of assembly of Virginia not repealed, expired, vacated or annulled by the kings most excellent majestie are not of force or binding within this his majesties dominion, to all his majesties subjects inhabiting or being therein, such person or persons soe offending shall be adjudged, deemed and taken to be factious and seditious and contemners of the lawes, and being thereof lawfully convicted, shall for the first offence bee fined one thousand pounds of tobacco, and suffer one months imprisonment, without bayle or mainprize and for the second offence, two thousand pounds of tobacco and two months imprisonment, and for every such offence after double the penalties and forfeitures aforesaid, one half of which forfeitures to the kings majestie, his heires and successors, and the other halfe to the informer, to be recovered by action of debt in any of his majesties courts in this his majesties country, which said penalties are to be added and imposed over and besides all other punishments that may be legally inflicted on such offenders.

(ACT VIII, An Act Imposeing Further Penalties upon Any Person or Persons that Shall Publish or Declare that the Acts of Assembly of Virginia, Are Not of Fforce; statute enacted “att a Generall Assembly, begunn att James Citty,” 10 November 1682)

Compare the copious language of this original statute with the abbreviated version, published about 40 years later, which dropped the colorful preamble:

     Enacted, THAT if any Person shall maliciously and unadvisedly publish and declare by Words or Writing, that the Acts of Assembly of Virginia not repealed, expired, vacated, or annulled by the King’s most Excellent Majesty, are not of Force or Binding within this Colony, such Person so offending shall be adjudged, deemed, and taken to be factious and seditious, and a Contemner of the Laws, and shall for the first Offence be fined One Thousand Pounds of Tobacco, and suffer One Month’s Imprisonment without Bail: And for the second Offence Two Thousand Pounds of Tobacco, and Two Months Imprisonment; and for every such Offence after, double the Penalties and Forfeitures aforesaid.
     ONE half to His Majesty, his Heirs and Successors, and the other half to the Informer, to be recovered by Action of Debt in any Court, &c. which said Penalties are to be added and imposed over, and besides all other Punishments that may be legally inflicted on such Offenders.

(An Act Imposing Further Penalties upon Any Person or Persons that Shall Publish or Declare, that the Acts of Assembly of Virginia Are Not of Force, 10 November 1682; in An Abridgement of the Publick Laws of Virginia, in Force and Use, June 10. 1720. To which Is Added, for the Ease of the Justices and Military Officers, &c. Precedents of All Matters to Be Issued by Them, Peculiar to those Laws; and Varying from the Precedents in England, ascribed to William Beverley (1696–1756) by Thomas Jefferson, 1st edn., 1722, 13–14)

With the tobacco riots of 1682, rebellion (against an overweening royal prerogative) became associated with more grandees of Virginia, such as Robert Beverley (1635–1687), a Yorkshire mariner from Hull, who emigrated c.1663 and

hauled up in Lancaster County where he prospered as a land surveyor, attorney, and import-export merchant planter. He and [Governor] Berkeley were drawn to one another. When the General Assembly carved Middlesex County out of Rappahannock County in 1669, the governor put him on the initial Middlesex commission of the peace and named him the new county’s surveyor and one of its militia officers. An unswerving Berkeleyite, Beverley proved harshly effective at suppressing Bacon’s rebels. He was elected to the General Assembly of February 1677. The burgesses picked him for their clerk, which led to his first clash with Berkeley’s successors. That collision happened in April 1677 when he refused turn over legislative journals in his custody to acting governor Colonel Herbert Jeffreys. His refusal caused the Privy Council to dismiss him and to mark him as a troublemaker who bore constant watching. Their assessment appeared justified in 1682 when he was arrested and tried for high treason in the General Court. He stood accused of leading planters in Middlesex County who destroyed their own and their neighbors’ tobacco crops, which they expected would create shortages that would raise prices. The treason charge failed for want of evidence, but he was convicted of “high misdemeanors” to which he confessed and was pardoned. Reelected clerk in the General Assembly of 1685–86, he incurred the wrath of then Governor Francis Howard, 5th baron Howard of Effingham, who accused him of turning the burgesses against him and fiddling conciliar amendments to a much-desired town bill. Such was the depth of their disagreements that the governor sought King James II’s permission to remove Beverley from the clerkship and his other offices. James complied but Beverley died in 1687 before Effingham could carry out the order.

(Warren M. Billings, Statute Law in Colonial Virginia, 73–74)

The loyalist Beverley was known to 19th-century scholars as “a sort of patriot martyr” and “the persecuted victim of an oppressive government” (Charles Campbell, Introduction, The History of Virginia, in Four Parts, by Robert Beverley, new edn., 1855, 1-3). His plight is instructive for those such as Donald Trump who have cast themselves in this same role.

Lord Culpeper, the absent Governor of Virginia, put down the tobacco riots of May 1682 (for which Beverley was arrested and tried for high treason), after Culpeper’s forced return to Virginia in December 1682. Stability was restored at a heavy cost, using patrols of horse, and arresting the rebellion’s ringleaders, some of whom were summarily hanged (illegally) upon a charge of treason.

In 1682 Culpeper’s repose in England was disturbed by news that Virginia was roiling in civil unrest caused by men destroying tobacco plants to protest overproduction. King Charles II demanded to know why Culpeper had left the colony without royal consent and also why he had taken money from the assembly, thus compromising his independence as governor. Ordered back to Virginia with harsh instructions from the King to stabilize the colony and increase the king’s revenues, Culpeper arrived in December 1682 a disgruntled man. He threw off the mask of amiability that he had worn earlier, insisting that settlers pay quitrents and implementing a number of unpopular measures. He dealt harshly with the destroyers of tobacco, hanging a few of the worst offenders. Ordering the price of tobacco to be raised without assembly action, he declared that this measure would enrich the king and assure his own salary. He attempted to modify legislation proposed by the assembly and, acting on the king’s instructions, announced that he alone would draft laws, receiving advice only from the Council of Foreign Plantations. He also ended the right of the House of Burgesses to entertain appeals from the lower courts jointly with the council and tried to establish the precedent that the speaker of the House of Burgesses should hold office upon his suffrance. Culpeper made life difficult for Robert Beverley, clerk of the House, by threatening to disenfranchise and arrest him when he would not surrender the journals of the House of Burgesses to the governor. Finally, Culpeper dissolved the assembly and declared that he would rule for the Crown without that body.
     Having made himself thoroughly despised by Virginians, Culpeper departed the colony for the last time in September 1683, leaving Nicholas Spencer, president of the council, to administer his government....

(ANB entry for “Culpeper, Thomas (1635–1689), Colonial Governor of Virginia and Second Lord Culpeper” by Paul David Nelson, n. pag.)

Governor Culpeper’s arbitrary, imperial rule (and too hasty execution of the plant-cutters) was retroactively legitimated by Virginia’s General Assembly with its riot-act of 1684, formally making it high treason to cut up Virginia’s sweet-scented tobacco plants (then produced nowhere else) in their beds.

WHEREAS many evill and ill-disposed persons inhabitants of this his majesties collony and dominion of Virginia, contrary to their duty and allegiance, on or about the first of May, in the thirty-fourth yeare of his majesties raigne {1682], and divers other dayes, and times tumultuously and mutinously assembled and gathered together to cut up and destroy all tobacco plants, and to perpetrate the same in a trayterous and rebellious manner, with force and armes entered the plantations of many his majesties good subjects of this his collony, resolving by open force, a generall and totall destruction of all tobacco plants within this his majesties dominion, to the hazarding the subvertion of the whole government, and ruine and destruction of his majesties good subjects, if by Gods assistance, and the prudent care and conduct of the then lieutenant governour and councill, the mutineires had not been timely prevented, for which treasons and rebellions against his majesty and this his government, some notorious actors have been indicted, convicted, and some of them executed, and suffered such paines and punishments as for their treasons and rebellions they justly deserved. Now to the end and purpose, that none of his majesties subjects may be at any time hereafter seduced by the specious pretenses of any persons, that such tumultuous and mutinous assemblyes, to cut up or destroy tobacco plants or any other the crop or labours of the inhabitants of the said collony, are but riotts and trespasses; and to the end, his majesties subjects of this his dominion, may be the better secured in their estates and possessions. The burgesses of this present generall assembly pray that it may be enacted, And bee it enacted by the governour, councill and burgesses of this assembly, That if any person or persons whatsoever, to the number of eight or above, being assembled together, shall at any time after the first day of June now next ensuing, intend, goe about, practice or put in use with force, unlawfully to cut, pull up or destroy any tobacco plants, either in bedds or hills, growing within the said collony, or to destroy the same, either cureing or cured, either before the same is in hogsheads or afterwards, or to pull downe, burne or destroy the houses or other places where any such tobacco shall be, or to pull downe the fences or enclosures of any tobacco plants, with intent to cut up or destroy the same, (and such person or persons being commanded or required in his majesties name by the governour or other commander in chief, or any one of the councell, or one or more of the justices of the peace of the said collony, commanding and requireing such persons to disperse themselves, and peaceably to depart to their habitations) shall continue together by the space of four houres after such proclamation made, at or nigh the place where such persons shall be soe assembled; that then every such persons soe willingly assembled, in forceable manner, to doe any of the acts before mentioned and soe continuing together as aforesaid, and being thereof lawfully convicted, shall be deemed, declared and adjudged to be traytors, and shall suffer paines of death, and alsoe loose and forfeite as in cases of high treason. Provided always, that noe person or persons whatsoever shall incurr the pains and penalties hereby inflicted, unlesse he or they be prosecuted and indicted thereupon, within twelve months after the offence committed, Any thing herein contained to the contrary notwithstanding.

(ACT II, An Act for the Better Preservation of the Peace of Virginia, and Preventing Unlawfull and Treasonable Associations; statute enacted “att a Generall Assembly, begun at James Citty,” 16 April 1684)

This punitive riot-act, dealing harshly with those “hazarding the subvertion [subversion] of the whole government” was abbreviated for an 18th-century audience as follows:

IF any Persons, to the number of eight or more, shall go about with Force unlawfully to pull up or destroy Tobacco Plants, either in Beds or Hills growing, or destroy the same curing or cured, or to pull down, burn, or destroy the Houses or other Places where such Tobacco shall be, or to pull down the Fences of any Tobacco Plants, with intent to cut up and destroy the same; And such Persons being commanded in His Majesties Name, or required by the Governour, one of tbe Council, or a Justice of Peace to disperse themselves and peaceably to depart to their Habitations, shall continue together four Hours after such Proclamation, (if it be made at or near the place of Concourse:)
     THEN every such Person so willingly assembled in forcible manner to do any of the Acts aforesaid, and so continuing together, shall be deemed and adjudged Traytor, and shall suffer Death, and lose and forfeit as in Cases of High Treason.
     Proviso, PROSECUTION be made within twelve Months.

(An Act for the Better Preservation of the Peace of Virginia, and Preventing Unlawful and Treasonable Associations, 16 April 1684; in An Abridgement of the Publick Laws of Virginia, in Force and Use, June 10. 1720. To which Is Added, for the Ease of the Justices and Military Officers, &c. Precedents of All Matters to Be Issued by Them, Peculiar to those Laws; and Varying from the Precedents in England, ascribed to William Beverley (1696–1756) by Thomas Jefferson, 1st edn., 1722, 14)

Given this nation’s historical tradition of putting down home-grown insurrections such as Bacon’s Rebellion of 1676–77 and the tobacco riots of 1682 by inflicting “condigne punishment upon the offenders” (An Act for Suppressing of Tumults, Routs, &c.; statute enacted “at a Grand Assemblie, holden at James Cittie,” convened 5 June 1676), there is no reason to think that our 17th- and 18th-century founders would have tolerated “The January 6 Rebellion” or approved fantastic interpretations of the Second Amendment awarding the multitude a constitutional right to armed insurrection.

At the very least, anyone advocating “an armed rebellion against the government” — be they resident in or storming the halls of Congress — would have been disarmed by our founders, and all antigovernment militias disbanded. From the beginning, Anglo-American law protected “the peace, government and dignity of the state,” as in Article 12 of Maryland’s influential Constitution and Form of Government, Agreed to by the Delegates of Maryland in free and full Convention assembled (1776), which explicitly prohibits any and all interference with the people’s legislature:

That the house of delegates may punish, by imprisonment, any person who shall be guilty of a contempt in their view, by any disorderly or riotous behaviour, or by threats to, or abuse of, their members, or by any obstruction to their proceedings; they may also punish, by imprisonment, any person who shall be guilty of a breach of privilege, by arresting on civil process, or by assaulting, any of their members, during their sitting, or on their way to or return from the house of delegates, or by any assault of or obstruction to their officers, in the execution of any order or process, or by assaulting or obstructing any witness, or any other person, attending on, or on their way to or from, the house, or by rescuing any person committed by the house; and the senate may exercise the same power, in similar cases.

(Article 12 of Maryland’s Constitution and Form of Government [introduced 3 November 1776, adopted “by the delegates of Maryland in free and full convention assembled” 8 November 1776], another document which profoundly influenced the United States Constitution [drafted 1787, ratified 1788])

From our founding, obstructing the people’s magistracy drew statutory condemnation. Anglo-America’s earliest statutes protecting legislative proceedings date from the 1620s, expressly privileging working elected representatives from arrest, in order that the “Dispatch and Reputation of the Publick Businesse” (phrasing in Virginia statute prohibiting the arrest of burgesses, enacted 26 April 1652) not be obstructed:

That no burgesses of the General Assembly shall be arrested during the time of the assembly, a week before and a week after upon pain of the creditors forfeiture of his debt and such punishment upon the officer as the court shall award.

(Act 11, passed “by the General Assembly” of Virginia at one of Anglo-America’s earliest legislative sessions, convened 5 March 1623-4)

This principle of exempting from arrest those who serve “the Publick Good” is ancient. For example,

COUNTÉE (Fr. Comte. A Comitando, because they accompany the King) Was, next to the Duke, the most eminent Dignity of a Subject, before, as well as since, the Conquest; and those, who in ancient time, were created Countees, were Men of great Estate and Dignity: For which cause, the Law gives them great priviledges; as, their persons may not be arrested for Debt, Trespass, &c. (because the Law intends, that they assist the King with their Council for the Publick Good, and preserve the Realm by their Prowess and Valor;) they may not be put upon Juries. If issue be taken, whether the Plaintiff or Defendant be a Countee, or not, This shall not be tried by the Countrey, but by the Kings Writ. Also the Defendant shall not have a day of Grace against a Lord of the Parliament, because it is intended he attends the Publick. And of old the Countee was Praefectus, or Praepositus Comitatus, and had the charge and custody of the County, whose Authority the Sheriff now hath. Coke, lib. 9. fol. 49. And is therefore called Viscount. See Earl.

(Thomas Blount, Nomo-Lexikon: A Law-Dictionary, 1670, s.v. Countée [viscount], n. pag.)

In more recent centuries, the “public peace and happiness” figured prominently in all of Anglo-America’s revolutionary constitutional conventions, as it did in Maryland, where a conservative state constitution stipulated that no “man shall disturb the good order, peace or safety of the state, or shall infringe the laws of morality, or injure others in their natural, civil or religious rights” (Article 33 of Maryland’s Declaration of Rights; introduced 27 August 1776, adopted 3 November 1776).

Those who cast “The January 6 Rebellion” in heroic terms, linking it to the American Revolutionary War — in a TV interview the day before the attack at the U.S. Capitol, U.S. Rep. Marjorie Taylor Greene (R-GA) proclaimed the next day would be “our 1776 moment”; while on the day of the putsch, Rep. Lauren Boebert (R-CO) tweeted that “Today is 1776” — grievously distort our history. Nothing would have revolted our founders more than the pro-Trump faction’s political violence and obstruction of Congress on 6 January 2021, based on “The Big Lie” of a demagogic president behaving like a king.

Former-President Trump’s rebellious assembly

Portraying “The January 6 Rebellion” in heroic terms has bearing on the growing controversy over Section 3 of the 14th Amendment, which prohibits anyone from holding office who previously has taken an oath to defend the Constitution and then later “engaged in insurrection or rebellion” against the country or given “aid or comfort” to its enemies. This section of Amendment XIV is at the center of multiple attempts to keep Donald J. Trump off the GOP primary ballot in dozens of states, preliminary to the presidential election in 2024.

Much of the coverage I have seen of the legal debate over Mr. Trump’s eligibility to run for office revolves around whether or not the former president engaged in insurrection (especially when such charges have yet to be proven in a court of law). For example, see POLITICO’s reporting on a Trump voter in New Hampshire who believes that “January 6th was staged.” (by media-savvy Congressional Democrats on the House Jan. 6 select committee, under the direction of Nancy Pelosi); that the former president is being set up, because “He breaks the system ... he exposes the deep state, and it’s going to be a miserable four years for everybody.” (“This is a whole system of government going after one man who, probably, I bet, right now, 85 million people want to be president.”); and that Mr. Trump did not try to overthrow the government on “Patriot’s Day” (6 Jan. 2021): “There was no insurrection. He [then-President Trump] said, ‘Go over there peacefully and protest.’” (qtd. in “‘Our System Needs to Be Broken, and He [Trump] Is the Man to Do It’: Ted Johnson sincerely thought he wanted a uniter not a divider. It didn’t last long” by Michael Kruse; POLITICO, 1/22/2024)

Coming at this as a historian, not a lawyer, I would frame the debate differently, emphasizing missing historical context concerning rebellion (not insurrection) which I believe to be central to our understanding of “this foundational question of our republic” (former 4th Circuit Court of Appeals Judge Michael Luttig, qtd. in “As Supreme Court Weighs Trump’s Eligibility, the ‘10th Justice’ Stays Mum: The solicitor general would typically file arguments on an issue of this magnitude — but the upcoming Trump case is a political lightning rod” by Josh Gerstein; POLITICO, 1/24/2024).

As I interpret Section 3 of Amendment XIV, Donald J. Trump is ineligible to “hold any office, civil or military, under the United States, or under any State” (unless Congress, “by a vote of two-thirds of each House, remove such disability”) because, while holding elective office, he engaged in “The January 6 Rebellion” (so-called by participants and supporters) by instigating rebellious assembly (“a gathering of twelve Persons, or more, intending ... of their own Authority, to change any Laws of the Realm”), and because he continues to give “aid or comfort” to the rebels, rioters and routers of that day — first, by refusing to intervene in the Capitol riot (reveling in the spectacle unfolding on TV instead), thus neglecting his constitutional duty to restore “the Publick Peace”; next, by marketing the rebels as martyrs for democracy, as “patriots,” and as “hostages” of the deep state; and finally, by promising, king-like (Ex gratia Regis, “by his absolute Prerogative or Power”), to issue blanket pardons to the January 6 rebels once he is returned to elective office.

I ground my interpretation of Mr. Trump’s disqualification for elective office in my reading of our nation’s continuing historical tradition of establishing The King’s Peace.

It should be of consequence for all the originalists out there that the intent and language of Section 3 was not new with the 19th century (the Fourteenth Amendment was adopted in 1868); nor is it specific to Anglo-America’s civil war era (ergo, irrelevant to our postmodern sociopolitical scene). Rather, the concern with preventing oath-keepers (aka covenanters) who “engaged in insurrection or rebellion” from returning to positions of power is rooted in English “Common Law (whereof the Kings Prerogative is a principal part)” (Thomas Blount, Nomo-Lexikon: A Law-Dictionary, 1670, s.v. Law Spiritual, n. pag.) — specifically, the institution of Pax Regis: “that Peace and Security, both for Life and Goods, which the King promiseth to all His Subjects, or others, taken to his Protection” (T. Blount, Nomo-Lexikon: A Law-Dictionary, 1670, s.v. Peace of the King, n. pag.).

Pax Regis is a fundamental principle undergirding “our Law-Common-wealth” (T. Blount, Nomo-Lexikon: A Law-Dictionary, 1670, Preface, a2r), dating back to Anglo-Saxon times (11th century). The oaths and pledges associated with it were civil covenants, long considered the bedrock of British civilization. The principle of Pax Regis has undergone shifts over the centuries, as it did when adapted to the American frontier, after undergirding the founding of Anglo-America in 1607. Even the “Mayflower compact” of 1620 is in this same vein, with signatories acknowledging the king of England as their sovereign and pledging submission and obedience to laws they themselves would enact and to leaders they would choose, thus establishing a democratically elective government. (J. D. Bangs, “Pilgrim Fathers [act. 1620],” n. pag.)

For centuries,

At the Age of Fifteen years, a Man ought to be sworn to keep the Peace. An. 34 Edw. 1. Stat. 3.

(Thomas Blount, Nomo-Lexikon: A Law-Dictionary, 1670, s.v. Age, n. pag.)

(In Saxon times, “the age of those who are to be sworn ... to the Kings Peace” was even earlier, “all of 12 years old and upwards” according to one account; and in another account: “all those who are 14 years old,” “except Religious Persons, Clerks, Knights eldest Sons, and Women,” “shall make Oath, That they shall be sufficient and loyal to Us; and, neither be Felons, nor assenting to Felons.” [qtd. in T. Blount, Nomo-Lexikon: A Law-Dictionary, 1670, s.v. Deciners, n. pag.])

Once having sworn to “the keeping of the Peace” (e.g., by way of “Frank-Pledge,” “Good Abearing” [Bonus gestus], “Surety of Peace” [Securitas pacis], etc.), any “breach of the Kings Peace, by Treasons, Insurrections, or Trespasses” (“offences, committed against the Crown, Dignity, and Peace of the King, as Treasons, Felonies, Mayhems, and such like”) was considered among the highest of public crimes, and subject to Draconian punishments. Under this nation’s historical tradition of Pax Regis, in all of its transformations (i.e., whether the king’s prerogative resides with a monarch or with “the people”), there was nothing remotely romantic about being a rebel, with or without a cause. Judge Royce Lamberth is right to call out those who make light of The January 6 Rebellion, “claiming rioters behaved ‘in an orderly fashion’ like ordinary tourists, or martyrizing convicted January 6 defendants as ‘political prisoners’ or even, incredibly, ‘hostages’” (qtd. in “‘Preposterous’: Federal Judge Decries Efforts to Downplay Jan. 6 Violence, Label Perpetrators ‘Hostages’” by Kyle Cheney; POLITICO, 1/25/2024).

As more of us fall prey to the growing demagoguery around “The January 6 Rebellion” — see, for example, “What the Cheney-Stefanik Clash Shows about the GOP and Jan. 6: Their personal insults expose still-festering fissures over the Capitol riot as the party looks ahead to the general election” by Olivia Alafriz (POLITICO, 1/27/2024); and see “Trump Is Making Jan. 6 a Key Element of his Campaign for President” by Lisa Mascaro, Mary Clare Jalonick, and Jill Colvin, of The Associated Press (posted to PBS NewsHour website, 3/19/2024) — it is worth revisiting influential 18th-century texts reminding us of the pejorative, historical public meaning of having “engaged in insurrection or rebellion.”

     REBELLION, originally signified a second Resistance, or Rising of such as had been formerly overcome in Battle by the Romans and had yielded themselves to their Subjection.
     ’Tis now generally used for a traitorous taking up of Arms against the King, either by his own natural Subjects, or by those formerly subdued.
     Rebel is sometimes also used in our antient Statutes, for a Person who wilfully breaks a Law; and sometimes for a Villain [villein] disobeying his Lord.
     Commission of REBELLION. See COMMISSION.
     REBELLIOUS Assembly, a gathering of twelve Persons, or more, intending or going about, practising, &c. unlawfully, and of their own Authority, to change any Laws of the Realm; or to destroy the Enclosure of any Park or Ground enclosed, Banks of Fish-Ponds, Pools, Conduits, &c. to the intent the same shall remain void, or to the Intent to have way in any of the said Grounds; or to destroy the Deer in any Park, Fish in Ponds, Coneys in any Warren, Dove-Houses, &c. or to burn Stacks of Corn, or to abate Rents, or Prices of Victuals. See RIOT, &c.

(E. Chambers, Cyclopaedia, 2 vols., 1728, s.v. Rebellion, 2.965)

Chambers’ Cyclopaedia, which was widely read by our 18th-century founders, is of a piece with historical tradition, having plagiarized this entry from Thomas Blount’s hugely influential 17th-century legal dictionary:

     REBELLION (Rebellio) Did anciently signifie a second resistance of such, as being formerly overcome in battel by the Romans, yielded themselves to their subjection. But now we use it generally, for the traiterous taking arms against the King, be it by Natural Subjects, or by others, formerly subdued. Rebel is sometimes attributed to him that wilfully breaks a Law. Anno 25 Edw. 3. cap. 6. And 31 Ejusdem, stat. 3. cap. 2. Sometimes to a Villain disobeying his Lord. Anno 1 Rich. 2. cap. 6. Commission of Rebellion, see in Commission.

(Thomas Blount, Nomo-Lexikon: A Law-Dictionary, 1670, s.v. Rebellion, n. pag.)

     REBELLIOUS ASSEMBLY, Is a gathering together of Twelve persons or more, intending [or] going about, practising or putting in ure unlawfully of their own authority, to change any Laws or Statutes of the Realm, or to destroy the enclosure of any Park [or] Ground enclosed, or Banks of any Fishponds, Pool, or Conduit, to the intent the same shall remain void, or to the intent, unlawfully to have Common, or Way in any of the said Grounds, or to destroy the Deer in any Park, or any Warren of Conneys, Dove-Houses, Fish in any Ponds, or any House, Barns, Mills, or Bays, or to burn Stacks of Corn, or to abate Rents or Prizes of Victuals. Anno 1 Mar. cap. 12. and 1 Eliz. cap. 17. See West, par. 2. Symbol. tit. Indictments. Sect. 65. and Cromp. Justice of Peace, fol. 41. b.

(Thomas Blount, Nomo-Lexikon: A Law-Dictionary, 1670, s.v. Rebellious Assembly, n. pag.)

Furthermore, then-President Trump’s rebellious assembly of 6 January 2021 also qualifies as a riot, historically defined as 3 or more persons assembled together, resulting in “the forcible doing an unlawful act”:

     RIOT (Fr. Riotte, quod non solum rixam & jurgium significat, sed vinculum etiam, quo plura in unum, fasciculorum instar, colligantur) Signifies the forcible doing an unlawful act, by three or more persons assembled together for that purpose. West, par. 2. Symb. tit. Indictments, sect. 65. The differences and agreements between a Riot, Rout, and Unlawful Assembly, See in Lamb. Eiren. lib. 2. cap. 5. Stat. 1 Mar. cap. 12. and Kitchin, fol. 19. who gives these Examples of Riots: The breach of Enclosures, Banks, Conduits, Parks, Pounds, Houses, Barns, the burning of Stacks of Corn, &c. Lamb. ubi supra mentions these: To beat a Man, to enter upon a Possession forcibly. See Rout and Unlawful Assembly; see also, in Cromp. Justice of Peace, divers Cases of Riots. Anno 17 Rich. 2. cap. 8. and 13 Hen. 4. cap. 7. See Rout.

(Thomas Blount, Nomo-Lexikon: A Law-Dictionary, 1670, s.v. Riot, n. pag.)

And then-President Trump’s rebellious assembly of 6 January 2021 also qualifies as a rout, historically defined as 3 or more persons assembled together, and “being together, do disturb the Peace, either by words, shew of arms, turbulent gesture, or actual violence”:

     ROUT (Fr. Route, i. A company or number) Which signifies an Assembly of three persons, or more, going forcibly to commit an unlawful act, though they do it not; and is the same which the Germans yet call ROT, meaning a Band or great company of Men gathered together, and going to execute, or are executing indeed any Riot, or unlawful act. See the Stat. 18. Edw. 3. stat. 1. and 2 Rich. 2. cap. 6. It is a Rout, whether they put their purpose in execution, or no, if they go, ride or move forward after their meeting. Brook, tit. Riot, 4. 5. So as a Rout seems to be a special kinde of unlawful Assembly, and a Riot, the disorderly fact committed generally by any unlawful Assembly. Howbeit, two things are common both to Rout, Riot, and Unlawful Assembly: The one, that three persons at the least be gathered together; the other, that they being together, do disturb the Peace, either by words, shew of arms, turbulent gesture, or actual violence, &c. See (n. pag.) Lamb. Eiren. lib. 2. cap. 5. See Riot and Unlawful Assembly.

(Thomas Blount, Nomo-Lexikon: A Law-Dictionary, 1670, s.v. Rout, n. pag.)

Whether or not then-President Trump’s rebellious assembly of 6 January 2021 also qualifies as an insurrection is a matter for the courts, and beyond the scope of my analysis here.

But he was, without question, a participant in (and I believe, responsible for) The January 6 Rebellion, in violation of his oath to defend the Constitution and to “ensure domestic tranquillity” (Preamble to the U.S. Constitution). Still in elective office while inciting and participating in rebellious assembly, former President Trump more than fits the profile of disgraced public officials who are disqualified from further public service under Section 3 of the 14th Amendment, should he be elected president of the United States in November 2024.

EDITED  I cannot overstate the severity with which the early-modern state clamped down on public crimes such as rebellion. The King’s advocate of Scotland, Sir George Mackenzie (d. 1691) — an ardent royalist and supporter of Stuart absolutism — is a case in point. Throughout his career, Mackenzie was obsessed with securing Pax Regis — “that Peace and Security, both for Life and Goods, which the King promiseth to all His Subjects, or others, taken to his Protection” (T. Blount, Nomo-Lexikon: A Law-Dictionary, 1670, s.v. Peace of the King, n. pag.). In general, Mackenzie insisted “that monarchs were as obliged to laws as subjects.” But

The preservation of order nevertheless remained Mackenzie’s priority in the aftermath of the mid-century civil wars. As domestic unrest escalated from the late 1670s onwards, he privately advised Charles II that, as an absolute sovereign ruling in exceptionally volatile circumstances, he was “not obliedged to shew a Law for what yow doe” (BL, Add. MS 23244, fol. 20v). As Mackenzie confirmed in A Vindication of his Majesties Government and Judicatures (1683), whatever measures were required to ensure civil peace were rendered lawful, since “the Necessity of State is that supereminent Law, to which upon occasions all particular Acts must bow” (Mackenzie, Works, 2.350). He was also compelled to justify dispensing with various legal niceties in his capacity as lord advocate. When the admissibility of auxiliary evidence was challenged during the trial of Robert Baillie of Jerviswood [covenanter and conspirator prosecuted for riot, insurrection and treason] in 1684, for example, Mackenzie warned the jury to avoid “encouraging a civil war, Wherein your selves and your Posterity may bleed”, by finding “the least difficulty” in a case where there were “Proofs [such as a confession obtained under torture that should have been inadmissible] which are stronger than witnesses” (Tryal … of Jerviswood, 36).

(ODNB entry for “Mackenzie, Sir George, of Rosehaugh (1636/1638–1691), lawyer and politician” by Clare Jackson, n. pag.)

NEW  In Restoration-era Scotland, the dangers posed to civil society were several. As elsewhere throughout the British empire, including British America, acrimonious ecclesiastical and theological disputation had a destabilizing effect on political and economic conditions, threatening state authority and the monarchical government. Late in the century, Pax Regis was also under threat from independent-minded, entrepreneurial Scots determined “to establish their own legitimate American colonial trade and break England’s imperialistic hegemony” (L. G. Fryer, 129).

On the death of Elizabeth Tudor of England in 1603, Scotland’s Stuart king — James VI — became king of England, Ireland, and Scotland. This so-called “Union of the Crowns” did little to unite the three kingdoms. The old hatred and distrust between the English and Scots was further aggravated when James (now James VI of Scotland and James I of England) moved his court from Edinburgh to London, 380 miles away, weakening the Scottish nobility’s influence on their monarch. However, James was an astute ruler and staunch Protestant, and under his rule the three kingdoms enjoyed a relatively peaceful interlude. When he died in 1625 he was succeeded by his son Charles I. Unlike his father, Charles exhibited strong popish tendencies which led to such unease in Protestant Scotland that many of her country’s noblemen and lairds signed the National Covenant in 1638. This lengthy document basically ensured the continuance of the Protestant religion in Scotland. Five years later, a Solemn League and Covenant was drawn up binding the English to adopt the Scots’ own form of Protestant faith. From these covenants the term Covenanter, simply meaning a staunch Protestant opposed to Episcopacy or Catholicism, is derived.
     Charles I’s poor management of the kingdom, religious policy, and disregard for Parliament led to the three kingdoms becoming involved in the bitter and destructive Civil Wars of the 1640s, and ultimately to Charles’s execution in 1649 by Oliver Cromwell and his fellow regicides. There followed an interregnum, called the Cromwellian Occupation or Commonwealth of Britain, which lasted until 1660 when Charles I’s son, Charles II, was restored to the throne. In British history, this period is known as the Restoration. Although one king had sat on both the English and Scottish thrones since 1603, both countries had retained their own parliaments (and thus their own laws, control over finances, etc.) until the Treaty of Union in 1707. During this period, from the Restoration until the Union of the Parliaments, the Scottish nation was banned by England’s Navigation Acts from participating in trade with the American colonies. In addition, hostility was growing towards the religious policy of both Charles and his brother and heir-presumptive, James, Duke of York, culminating in the Exclusion Crisis — an attempt to block James’s accession to the throne in favor of Protestant William of Orange and his wife, Mary Stuart. When the Exclusion Bill, brought by the English Parliament [introduced in 1679], failed to be made law, an abortive attempt on the lives of both Charles and James, known as the Rye House Plot, was made in 1683. In Scotland, the general uneasiness with the Stuart monarchy and its harsh policy of religious persecution, culminating in the “Killing Time” of the 1680s [overseen by “my Lord Advocate”], meant that the Restoration proved to be an equally troubled time for Scottish Protestants. Many fled to Holland, while others voiced a desire to settle in the New World. It was against this background of fear, discontent, and mercantile frustration that a plan for a Scottish-American colonial trading company — the Carolina Company — was conceived.

(Linda G. Fryer, “Documents Relating to the Formation of the Carolina Company in Scotland, 1682,” 111–112)

EDITED  As lord advocate, Mackenzie responded to growing national security threats by clamping down on destabilizing public shows of rebellious nonconformity. His zealous prosecution of treason cases — especially against the radical Scottish Presbyterians known as Covenanters, some of whom settled New Jersey (see George Scot, The Model of the Government of the Province of East-New-Jersey, in America; and Encouragements for such as Designs to Be Concerned There [Edinburgh, 1685]) — earned him the nickname “Bluidy Mackenzie” (Bloody Mackenzie). Long celebrated for his brilliant writings on Scottish legal matters and for his service to the national government at a time of great political and religious turmoil, Sir George Mackenzie

differentiated between the severity appropriate for public crimes and the potential for leniency in private transgressions. As he conceived it, an individual who allegedly “designed to commit a crime, should be punished as if he had committed it; if he was only letted by accident, because the Common-wealth cannot otherwise be secure.”

(ODNB entry for “Mackenzie, Sir George, of Rosehaugh (1636/1638–1691), lawyer and politician” by Clare Jackson, n. pag.)

“[A]n offence against the Common-wealth” — “as tending to misconstruct His Majesties proceedings, and Government, or bearing insinuations, which may raise in the people jealousie against the Government” — deserved the maximum punishment by law:

... to misconstruct His Majesties Government, and proceedings; or to deprave His Laws, is expresly declared punishable by death, by the 10. Act. 10. P. I. 6.

(Sir George Mackenzie, The Laws and Customes of Scotland, in Matters Criminal, 1678, 11)

So, given such “a wicked designe” as the intent to commit arson by a female servant,

it was admired [wondered at], why in July. 1670. Mr. Stanfields servant, was not punisht with death for indeavouring to burn her Masters house, albeit she was apprehended before any prejudice was done: But I would here add, as a caution, that great praemeditation, should be proved before Conatus be punished capitally; for that showes the confirmed malice of the designer, and is aequivalent, as to him, to successe. 3. In mean crymes, where the effect followed not, upon the designe, but was hindred by repentance: I think little or no punishment should follow, for, nihil tam naturale, quam unum quod[que] eodem modo dissolvi, quo colligatum est. [...] for in some crimes, Conatus or indeavour, is more punishable then in others.

(Sir George Mackenzie, The Laws and Customes of Scotland, in Matters Criminal, 1678, 10–11)

As Mackenzie explains, by the early-modern period, crimes of a private domestic nature committed by low-ranking “mean” persons (especially when repented) were treated more leniently than “atrocious” public crimes, such as The January 6 Rebellion, which were undertaken with “great praemeditation.”

Had “Bluidy Mackenzie” been prosecuting those participating in “The January 6 Rebellion,” everyone from then-President Trump on down would have learned the true meaning of a tyrannical deep state. Historically, those with power and wealth who serve as the ringleaders of rebellion received the most Draconian punishments. In addition to being “hanged, drawn, and quartered, and forfeit his Lands and Goods to the King,” by our ancient laws, high-ranking persons who committed public crimes against the King’s Peace “as Treasons, Felonies, Mayhems, and such like” were punished by disgrading:

DISGRADING or DEGRADING (Degradatio) Is the punishment [...] of a Lord, Knight, &c. Sir Andrew Harkley, Earl of Carlisle was convicted, degraded, and attainted of Treason, Hill. 18 Edw. 2. Coram Rege, Rot. 34, 35. And by the Stat. 13 Car. 2. cap. 15. William Lord Monson, Sir Henry Mildmay, and others therein named, were degraded from all Titles of Honor, Dignities, and Preheminencies, and none of them to bear or use the Title of Lord, Knight, Esquire, or Gentleman, or any Coat of Arms for ever after, &c. By the Canon Law there are two sorts of degrading, one Summary, by word onely; the other, Solemn, by devesting the party degraded of those Ornaments and Rights, which are the Ensigns of his Order or Degree. See Seldens Titles of Honor, fol. 787.

(Thomas Blount, Nomo-Lexikon: A Law-Dictionary, 1670, s.v. Disgrading or Degrading, n. pag.)

and by attainder:

ATTAINDER (attincta and attinctura) Is when a Man hath committed Treason or Felony, and after Conviction, Judgment hath passed upon him. The Children of a person Attainted of Treason cannot be Heirs to him, or any other Ancestor. And if he were noble and gentle before, he and his posterity are made base and ignoble: This corruption of Blood cannot be salved, but by Act of Parliament. See Attainted, and Felony.

(Thomas Blount, Nomo-Lexikon: A Law-Dictionary, 1670, s.v. Attainder, n. pag.)

The commission of high public crimes (“an offence against the Common-wealth”) by those in positions of power was deemed so egregious that it “corrupted” the entire family’s bloodline:

CORRUPTION OF BLOOD (Corruptio Sanguinis) Is an Infection growing to the State of a Man (attainted of Felony or Treason) and to his Issue: For, as he loseth all to the Prince, or other Lord of the Fee, as his case is; so his issue cannot be heirs to him, or to any other Ancestor by him. And, if he were Noble, or a Gentleman before, he and his children are thereby ignobled and ungentiled. But, if the King pardon the offender, it will cleanse the corruption of Blood in those Children, which are born after the Pardon, and they may inherit the Land of their Ancestor, purchased at the time of the pardon, or afterward; but so cannot they, who were born before the pardon. Yet note, there are divers offences made Treason by Act of Parliament, whereof, though a Man be Attaint, yet his Blood, by Provisoes therein, is not corrupt, nor shall he forfeit any thing, but what he hath for his own life; for which, see the several Statutes of 5 Eliz. cap. 1, 11 & 14. ——18 Eliz. cap. 1. ——31 Eliz. cap. 4. and 1 Jac. cap. 12.

(Thomas Blount, Nomo-Lexikon: A Law-Dictionary, 1670, s.v. Corruption of Blood, n. pag.)

Note that the Elizabethan and Jacobean statutes protecting the posterity of those attainted for high and petty public crimes still stripped the attainted of his social status and reputation, in addition to turning all that he possessed over to the state (“punished by loss of Lands not intailed, and Goods and Chattels, both real and personal”). In light of this punitive historical Anglo-American tradition, the disqualification imposed by Section 3 of the Fourteenth Amendment on those who pledge allegiance, then violate their oath of public service, barely registers.

It is also interesting to note that this antique notion of “corruption of blood” has resurfaced, with a postmodern twist. Mr. Trump has himself brought it up, using the Hitler-era phrase, “poisoning the blood of our country” on the 2023–2024 campaign trail. Significantly, he directs this demagoguery at the low-ranking “mean” persons for whom Sir George Mackenzie pleaded leniency (in this case, powerless immigrants, many of whom will also work in domestic service) rather than native-born elites, such as himself, who have committed “an offence against the Common-wealth.”

For a quick introduction to Donald Trump’s curious refashioning of “corrupt the Blood” dogma for postmodern times, see:

1.   PBS NewsHour segment, “Trump Amplifies Violent Rhetoric against his Perceived Enemies as Civil Fraud Trial Begins” (aired 10/4/2023)
     SUMMARY: “The civil trial accusing Donald Trump of fraud is underway in New York. The case has become a vehicle for the former president and frontrunner for the GOP nomination to amplify violent rhetoric against his perceived enemies from judges to legal clerks and the attorney general. White House Correspondent Laura Barrón-López reports.”

2.   PBS NewsHour segment, “Trump’s Ramped-Up Rhetoric Raises New Concerns about Violence and Authoritarianism” (aired 11/13/2023)
     SUMMARY: “Former President Donald Trump attacked his political opponents in a speech over the weekend that historians say echoed authoritarian leaders. Amna Nawaz discussed concerns about the rhetoric and the future of democracy with New York University historian Ruth Ben-Ghiat.”

3.   “Colorado’s Ineligibility Ruling Threatens Profound Disruption in 2024: The ruling will almost certainly wind up in the U.S. Supreme Court” by Adam Wren and Josh Gerstein (POLITICO, 12/19/2023)

4.   Q&A with Mike Godwin, “‘Trump Knows What He’s Doing’: The Creator of Godwin’s Law Says the Hitler Comparison Is Apt: The Internet legend explains why the Biden campaign isn’t wrong to compare Trump to Hitler” by Calder McHugh (POLITICO, 12/19/2023)

5.   “‘There Are a Lot of Mexican People Looking Forward to Trump’: A visit to the border city of El Paso shows how the politics of immigration are shifting — and what’s really underneath it” by David Siders (POLITICO, 12/19/2023)

6.   “Trump Says He Didn’t Know his Immigration Rhetoric Echoes Hitler: That’s Part of a Broader Pattern” by Jill Colvin of The Associated Press (posted to PBS NewsHour website, 12/27/2023)

7.   PBS NewsHour segment, “Trump Deploys Racist Tactics as Biden Rematch Appears Likely” (aired 1/26/2024)
     SUMMARY: “Republicans are increasingly coalescing around former President Trump, even as the likely GOP presidential nominee continues to use racist and incendiary language. From circulating baseless conspiracies about his presidential rivals to demonizing immigrants — Trump’s rhetoric has reshaped the party’s base. White House correspondent Laura Barrón-López joins Amna Nawaz to discuss.”

EDITED  Furthermore, I believe such demagoguery is of a piece with former-President Trump’s ongoing attempts at obstructing congress, most recently, by attempting to cancel an historic bipartisan border deal — which would undoubtedly “promote the general welfare” (Preamble to the U.S. Constitution) — because it threatens to rob him of “poisoning the blood of our country” as a potent campaign issue. As the de facto leader of a GOP which he has refashioned to wear his MAGA brand, Donald Trump is able to pressure Republican politicians in Congress, who have been calling for robust action on border security, to hold off on any bipartisan deal, until he can get back into power.

EDITED  For a quick introduction to Donald Trump’s interference in the “Dispatch and Reputation of the Publick Businesse” undertaken by congress, in an effort to promote his own factional interests and deal-making acumen, see:

1.   “Senate Deal on Border and Ukraine at Risk of Collapse Amid Election Year Pressure” by Stephen Groves and Mary Clare Jalonick of The Associated Press (posted to PBS NewsHour website, 1/25/2024)

2.   “White House Stays the Course on Border Talks — Despite Trump’s Interference: The restraint from Biden aides signals the White House is still hopeful a deal is possible” by Myah Ward (POLITICO, 1/25/2024)

3.   PBS NewsHour segment, “Possible Deal on Ukraine Aid, Immigration Reform at Risk of Collapsing” (aired 1/25/2024)
     SUMMARY: “High-stakes negotiations in Washington over two intertwined and looming issues were derailed on Thursday. The possible deals to aid Ukraine and reform the U.S. immigration system are at risk of collapsing under their own political weight. Congressional Correspondent Lisa Desjardins spent the day speaking with lawmakers on Capitol Hill and breaks down the developments.”

4.   PBS NewsHour segment, “Border Standoff between Texas, Feds Intensifies as Governor Defies Supreme Court Ruling” (aired 1/25/2024)
     SUMMARY: “This week, the Supreme Court sided with federal agents to remove razor wire put in place by Texas along the Rio Grande. The state is using wire and state agents to block Border Patrol from accessing a section of the border in Eagle Pass. Homeland Security is demanding access to the area by Friday, but Gov. Greg Abbott is doubling down. Laura Barrón-López discussed the dispute with Stephen Vladeck.”
     This piece is about more obstruction of we, the people’s federal government, this time from the states.

5.   PBS NewsHour segment, “Mexico’s Foreign Secretary Discusses What her Country Is Doing to Ease Border Crisis” (aired 1/25/2024)
     SUMMARY: “Mexican Foreign Secretary Alicia Bárcena met with Secretary of State Antony Blinken in Washington to discuss the situation at the border. Since the holidays, there has been a drop in migrant encounters, which the Biden administration credits to aggressive enforcement by Mexico. Amna Nawaz spoke with Bárcena about the complex, political and human matter and asked what Mexico has done differently.”
     Related to this interesting interview is an earlier piece of print journalism delving into the complex of issues complicating immigration reform, by focusing on the story of a single immigrant, whose personal plight puts a human face on former-President Trump’s “poisoning the blood of our country” demagoguery: “Our Mango Republic: Southern Mexico Has Become an ‘Open-Air Prison’ for Migrant Workers” by Esther Honig (The Nation, 3–10 April 2023, vol. 316, no. 7, pp. 28–33). As this article makes clear, there are so many conflicting, divergent interests at play in immigration reform that there are no “perfect” solutions to be had, as former-President Trump pretends he can achieve, arguing that “no deal” is better than win-win bipartisan legislation in which he does not get everything he wants; see online pointers for No. 2 (“the nation is ‘better off not making a deal’ unless it’s ‘perfect’”), No. 8 and No. 11 (“... a very bad bill ... a bad bill, I’d rather have no bill than a bad bill”), plus No. 9 and No. 10 (“A bad border deal is far worse than no border deal.”).
     No, it is not. As the French proverb (credited to Voltaire) pragmatically notes, The perfect is the enemy of the good. And what we’re after here is “the Publick Good.”
     As to how we get there, I recommend following up on the insights of Miriam Brody, who suggests that we “imagine the metaphor of our public conversations as a design rather than a battle.” “A design admits the mutual interdependency of all its constituent parts and idealizes that some coherence may be wished for as the outcome of a multiplicity of positions.” For Brody, “coherence stands in for settlement of difference, or for a locus or terminus toward which argumentative positions point in all of their differences from each other.” She acknowledges that much of recent theory “has importantly recognized and celebrated these differences, lest in silencing them we ascribe to the privileging of the status quo, but without suggesting a way out of difference, we are left as a community in a perpetual cacophony. This result is fatal to our project to legislate social justice, because in cacophonies, settlements belong to those with the loudest voices or the biggest guns. Because we must share public places and public law with persons with whom we disagree, our striving must include ways of arbitrating differences. A design ... may serve our projects for social justice better than the contest or the cacophony, both of which allow for nonnegotiated settlements.” (Miriam Brody, Manly Writing: Gender, Rhetoric, and the Rise of Composition, 215)

6.   “Biden Says He’ll Shut Down the Border If Deal Gives Him Authority: The White House statement comes after a week of frantic negotiations in the Senate” by Myah Ward and Burgess Everett (POLITICO, 1/26/2024)

7.   PBS NewsHour segment, “Capehart and Johnson on Immigration, Trump’s Defamation Case and the 2024 Race” (aired 1/26/2024)
     SUMMARY: “Washington Post associate editor Jonathan Capehart and Washington Free Beacon Editor-in-chief Eliana Johnson join Amna Nawaz to discuss the week in politics, including an $83 million ruling against former President Trump for defamation, Nikki Haley’s campaign after New Hampshire and the impact immigration is having on President Biden’s run for reelection.”

8.   “Trump Vows to Fight Border Deal ‘All the Way,’ Praises Johnson as ‘Very Tough’: The former president also praised House Speaker Mike Johnson for rejecting the unreleased agreement” by Myah Ward (POLITICO, 1/27/2024)

9.   “Johnson Throws Cold Water on Border Deal: Johnson claimed the president already has ‘ample authority’ to restrict entry of illegal immigrants” by Giselle Ruhiyyih Ewing and Burgess Everett (POLITICO, 1/27/2024)

10.   “Trump Slams Deal that Would Give Biden Authority to Close Border: The former president has made immigration reform and the border a central plank of his election campaign” by Olivia Alafriz (POLITICO, 1/27/2024)

11.   “Top Border Negotiators Stump for their Deal Ahead of Possible Vote Next Week: Whether Republicans will support the long-debated border deal amid pressure from Donald Trump to reject it remains to be seen” by Kelly Garrity and Ursula Perano (POLITICO, 1/28/2024)

12.   PBS NewsHour segment, “House Republicans Move to Impeach DHS Secretary Mayorkas” (aired 1/30/2024)
     SUMMARY: “The House of Representatives is on the cusp of impeaching a Cabinet secretary for the first time in 150 years. Republicans on the Homeland Security Committee advanced articles of impeachment Tuesday against DHS Secretary Alejandro Mayorkas. The full chamber is expected to take up the question as soon as next week. Lisa Desjardins, who was at the hearing, joins Geoff Bennett with more.”
     As Lisa Desjardins reports, “Mayorkas, Democrats, and, frankly, some Republicans also say that this is political and unprecedented, impeaching a Cabinet secretary for what they say is really a policy difference. [...] The question here, Geoff, is not really how do you fix the problem at the border. It’s, who do you blame? This impeachment is not going to change things at the border, but the blame and what the message is, is at stake.” While in the midst of “trying to negotiate with other Republicans for a potential border deal on the Senate side,” Secretary Mayorkas is being obstructed by the Trump faction in the House of Representatives because presidential candidate Trump wants “to campaign on the border. He does not necessarily want a deal or a solution right now.” Desjardins points out that congressional MAGA Republicans “say there is a real issue at the border. They really think this is a dereliction of duty.” But undermining the “Dispatch and Reputation of the Publick Businesse” by impeaching a public servant because he is faithfully doing his job implementing border policies with which you disagree is most certainly a dereliction of representatives’ constitutional duty to “promote the general welfare” (Preamble to the U.S. Constitution).
     EDITED  There is, of course, nothing new about factionalism in government, whereby one faction works at cross-purposes with the faction in power in order to bring down the latter. But, historically, “hazarding the subvertion of the whole government” (An Act for the Better Preservation of the Peace of Virginia, and Preventing Unlawfull and Treasonable Associations; statute enacted “att a Generall Assembly, begun at James Citty,” 16 April 1684) by impeding the functioning of one branch of government is also what it means to engage “in insurrection or rebellion” (Section 3, 14th Amendment). IMO, this is obstruction, not the “checks and balances” between branches envisaged by our founders.
     The preferred way to serve “the Publick Good” in such matters is to engage in public policy disputes, and let the voters decide which faction’s immigration policies they prefer. Yet, as Amy Walter recently pointed out, this is not something politicians wish to do (probably because it earns few political rewards from a riled up, aggrieved and irrational electorate): “... if you look at the polling ... [Trump]’s got a 25-point lead over Biden on who do you trust on border security. So, again, if we’re talking about blatantly political, there’s your reason right there.  ¶   I do think, though, there’s a difference — and we will see if this is the case — once we get to November — between border security and immigration.  ¶   So the issue of border security, there’s no doubt that this is a big challenge for the administration. This is definitely a weakness for this administration, for this president.  ¶   But on immigration, you have Donald Trump and those around Donald Trump saying, look, our agenda on immigration is going to be mass deportations. It’s going to be setting up detention centers. We’re going to deputize people to be able to go into cities and deport citizens.  ¶   We haven’t really had that conversation yet. And that’s what I’m curious to see as we move from now all through the summer and into the fall ..., how those two issues are playing off against each other.” (Amy Walter, “Tamara Keith and Amy Walter on a Border Deal and Nikki Haley’s Presidential Run”; PBS NewsHour segment, aired 1/29/2024)
     If a broken Congress won’t lead this conversation, perhaps the labor movement will. See “Teamsters and Trump Disagree on Immigration at Endorsement Meeting: The former president met with the International Brotherhood of Teamsters on Wednesday” by Brittany Gibson (POLITICO, 1/31/2024). Trump apparently believes that there is “tremendous support” within the rank-and-file for his plan to “close down” the border, even if the labor aristocracy disagrees (“The Teamsters union supports immigrant workers because we all come from people that came from different countries,” said Teamsters President Sean O’Brien). As more unions host public meetings with policy-makers on the multifaceted and puzzling topic of immigration reform, perhaps the rest of us can listen in and learn something, too.

13.   “Deal on Wartime Ukraine Aid and Border Security Stalls in Congress as Time Runs Short” by Stephen Groves, Lisa Mascaro, and Mary Clare Jalonick of The Associated Press (posted to PBS NewsHour website, 1/31/2024)
     Despite the fact that “Senate negotiators have kept a close hold on the details of a bipartisan package on border enforcement and immigration policies” — the text of which is still unfinished, and has not been released — current U.S. presidential candidate Donald Trump “has seized on a key compromise in the bill that would expel migrants seeking asylum at the border once illegal crossings rise above 5,000 daily. Speaking to reporters after a meeting with the Teamsters union in Washington Wednesday, he called the bill ‘terrible,’ but denied his opposition had anything to do with presidential politics.  ¶   ‘If the bill’s not going to be a great bill and really solve the problem, I wouldn’t do it at all,’ Trump said.”
     As effective as Trump’s demagoguery may be in leading his congressional faction to cancel a bill they haven’t even seen, this is yet more of his trademark militant ignorance.
     “Sen. Kyrsten Sinema, an Arizona independent who has been central to Senate talks, said the group was close to releasing text but was still working through the intricacies of writing immigration law. She urged lawmakers to keep an open mind to the legislation.  ¶   Sinema called it ‘factually false’ for conservatives to claim that the proposal would allow 5,000 migrants to enter the country daily. The expulsion authority would be one part of a new system that includes raising the initial standard to receive asylum protection and quickly processing asylum claims.  ¶   Migrants who apply for asylum at ports of entry would be put in a ‘removal authority program,’ in which their asylum case is decided within six months, Sinema said. And migrants who seek asylum in between ports of entry would be put into detention and removed within 10 to 15 days if they fail initial interviews, known as credible fear screenings.  ¶   ‘It ensures that the government both has the power and must close down the border during times when our system is overwhelmed, and it creates new structures to ensure that folks who do not qualify for asylum cannot enter the country and stay here,’ she said. ‘It is a very robust package.’” (S. Groves, L. Mascaro, and M. C. Jalonick, n. pag.)

14.   “Republicans in Congress Are Bending to Trump’s Demands. Some Are Frustrated: Republicans are increasingly sensitive to Trump’s viewpoints and conscious of his power to upend bills that Joe Biden might be able to tout on the campaign trail” by Burgess Everett, Olivia Beavers and Meridith McGraw (POLITICO, 2/2/2024)
     (I have to ask: in what universe is no loaf better than half a loaf? Only in Congress is this a knotty conundrum. ;-)

15.   A Q&A with Rep. Veronica Escobar, “‘A Strategic Mistake on the Part of My Party’: A Top Dem Speaks Out on the Border: Rep. Veronica Escobar isn’t afraid to disagree with the president she wants reelected” by Ryan Lizza (POLITICO, 2/3/2024)
     Finally!, the beginning of a substantive debate over immigration policy (“something that has consistently not worked is rapid expulsion”).
     Escobar is clear-eyed about how immigration reform is properly a congressional (not presidential) responsibility: “... the toughest domestic policy issue that we are facing today.... [Democrats] should lean in and we should explain to the American people how difficult this is and how multifaceted the solution has to be. There’s not a quick fix. There’s not an easy band-aid. It will take years of public policy and appropriations to get to a point where things are more manageable, but nobody wanted to talk about it. And I think that was a strategic mistake on the part of my party and that includes everybody.” (n. pag.)
     She also offers a corrective to the Trump faction’s specious impeachment of Department of Homeland Security Secretary Alejandro Mayorkas: “I frequently speak to Secretary Mayorkas, who is the most decent, incredible human being. He’s a solutions-based person, but he is deeply rooted in some values that we share. He doesn’t get enough credit for some of the really great work that he’s done that upholds our values as a nation and as a party.” (n. pag.)

16.   The text of the 370-page bipartisan border security bill was released late on Sunday, 4 February 2024, with the speaker of the House, Mike Johnson, declaring the very next day (before even reading it through) that “If this bill reaches the House, it will be dead on arrival.” This is a deeply cynical political calculation by conservatives, given that the bill is “one of the most conservative and comprehensive proposals in decades to emerge from a bipartisan negotiation in Congress”: “‘We have a very conservative bipartisan border bill that fixes the problem at the border,’ said Connecticut Sen. Chris Murphy, who negotiated the bill for Democrats. ‘And it’s time for the country to see where people stand on that.’” (qtd. in “WATCH: Biden Pleas for Congress to ‘Show Some Spine’ as Border Security and Ukraine Aid Collapses” by Stephen Groves, Mary Clare Jalonick, and Aamer Madhani, for The Associated Press; posted to PBS NewsHour website, 2/6/2024)
     As for what is actually in “the most significant immigration reform proposal in a generation,” see reporting by the PBS NewsHour’s Lisa Desjardins, “How the Bipartisan Border Deal Would Transform the U.S. Immigration System” (aired 2/5/2024).
     See also “Detention and That Border ‘Shutdown’: What’s Really in Biden’s Bipartisan Immigration Deal / Breaking down 12 major points in the border deal, including the parameters of a border shutdown, increased visas and work permits for asylum seekers” by Jennifer Scholtes and Caitlin Emma (POLITICO, 2/5/2024).
     And see “Critics Say Border Bill Would Send $60B to Ukraine. Here’s Where It’s Really Going. / The majority of funding would be used to restock the U.S. military’s inventory after it sent weapons to Kyiv” by Connor O’Brien and Joe Gould (POLITICO, 2/6/2024).

17.   Various excuses have been floated for canceling “the toughest and fairest bipartisan border security bill in decades” (Angelo Fernández Hernández, qtd. in “Biden’s Next Border Challenge” by Myah Ward, Lauren Egan and Ben Johansen; POLITICO, 2/13/2024). House Speaker Mike Johnson created a false dichotomy between “border security” and “immigration reform”: “They did not send us a border security measure. They didn’t. They sent us a supplemental funding proposal that has immigration reform, but not real border security reform, and so that’s why it’s a nonstarter.” (qtd. in the PBS NewsHour segment, “Bipartisan Border Deal Hits Legislative Wall as Republicans Say They Will Block Bill”; aired 2/6/2024) As far as I’m concerned, there is no border security without immigration reform, so this manufactured polarity is meaningless. The real dichotomy is between the Trump faction’s concept of “border security” and an alternate model of “humane border security,” as proposed, for example, by “a group of 35 Latino, civil rights, faith and immigration groups — including UnidosUS, Voto Latino, United We Dream, Mi Familia Vota and the Immigration Hub” which “sent a report to the White House, laying out a set of 2024 priorities to ‘advance humane border security and legal pathways for long-settled immigrants in the U.S.’” (qtd. in “Biden’s Next Border Challenge,” n. pag.) See also “Progressive Groups Preemptively Rip Biden over Immigration Executive Actions: The groups warn Biden that an asylum ban, and other plans being mulled, echo ‘extremist’ tactics” by Myah Ward (POLITICO, 2/23/2024). And see POLITICO’s interview of California Senator Alex Padilla, “Never Mind Republicans, Biden Hadn’t Sold his Own Party on Border Deal: California Sen. Alex Padilla said the administration was aware of his opposition” by Ben Fox (POLITICO, 2/7/2024).
     In contrast to a liberal focus on “humane” immigration policies, Donald Trump is promising militarized mass deportations of unwanted immigrants, by abusing the president’s emergency powers under the Insurrection Act, consequent on redefining what Republicans now term an “invasion” of aliens at the southern border as an “insurrection”! See the PBS NewsHour segment, “The Potential Impact of Trump’s Extreme Deportation and Immigration Agenda” (aired 2/12/2024). Laura Barrón-López explains:
     “[LAURA BARRÓN-LÓPEZ:] So, Amna, that mass deportation plan that Trump has talked about, including this weekend, we know some details of how it would be carried out from Stephen Miller, the architect of Trump’s first-term immigration policies, who remains a close ally and adviser to the president.  ¶   Stephen Miller talked about how they would carry out that type of deportation plan to right-wing personality Charlie Kirk last fall.
     “[STEPHEN MILLER, Former Senior White House Adviser:] Then, in terms of personnel, you go to the red state governors and you say, give us your National Guard. We will deputize them as immigration enforcement officers. The Alabama National Guard is going to arrest illegal aliens in Alabama and the Virginia National Guard in Virginia.  ¶   And if you’re going to go into an unfriendly state like Maryland, well, there would just be Virginia doing the arrest in Maryland right, very close, very nearby.
     “[LAURA BARRÓN-LÓPEZ:] So, there, Stephen Miller is talking about how they would federalize the National Guard to carry out the mass deportation plan.  ¶   Through comments from Stephen Miller, through comments from the former president himself, reports, as well as aligned policy groups, we have a picture of the type of immigration policies that the former president would implement if he were to win a second term.  ¶   And so the list that we have is not an exhaustive list, but it includes building large-scale camps near the southern border, a renewed Muslim travel ban, the end of birthright citizenship for U.S.-born children of undocumented immigrants, and creating a federalized army of red state National Guards like Stephen Miller referenced.
     “[AMNA NAWAZ:] Is that legally possible, even, federalizing red state National Guards?
     “[LAURA BARRÓN-LÓPEZ:] So, technically, yes, it is.  ¶   I spoke to Joseph Nunn. He is from the Brennan Center for Justice and he is a legal expert on U.S. military activities domestically. And he said that this is legally possible for the president to do.
     “[JOSEPH NUNN, Brennan Center for Justice:] Donald Trump’s proposal to send the National Guard from red states into blue states in order to enforce this deportation program could only be accomplished through invoking the Insurrection Act.  ¶   But the Insurrection Act makes the president the sole judge of whether a given situation warrants invoking the act. In other words, an insurrection is whatever the president says is an insurrection. That’s why it’s so important for Congress to reform the Insurrection Act to put in place safeguards against abuse, because, as things stand, there are quite literally no guardrails.” (n. pag.)
     Only in the alternate reality of Trumpworld — where facts and words mean just what Trump chooses them to mean at any given time (like Humpty Dumpty in Lewis Carroll’s Through the Looking Glass [1872]) — does such twisted logic — “illegal aliens” who peacefully cross the border are engaged in “insurrection”; but U.S. citizens, loyal to a legally-ousted president determined to cling to power, who violently breached the Capitol on 6 January 2021, did not engage in insurrection — make any sense. Certainly, there is no historical precedent or justification for such idiosyncratic abuses of executive powers.
     When the Trump faction demands that President Biden take robust executive actions to fix the border — in lieu of Congress enacting “the toughest and fairest bipartisan border security bill in decades” (White House spokesperson Angelo Fernández Hernández) — is this what they mean?
     Do they want President Biden — “He has the power to put a stop to this today if he wanted to.” (Chris Cabrera, Vice President, National Border Patrol Council; in the PBS NewsHour segment, “Biden and Trump Visits to Border Highlight Conflicting Immigration Policies”; aired 2/29/2024) — to federalize California’s National Guard and sic it on the residents of Kari Lake’s Arizona?
     During his second visit to the Texas-Mexico border on 2/29/2024, President Biden challenged Donald Trump to back away from what I am calling here his Humpty Dumpty border security program, and instead lean into proven bipartisan strategies for addressing border issues: “Here’s what I would say to Mr. Trump. Instead of telling members of Congress to block this legislation, join me, or I will join you in telling the Congress to pass this bipartisan border security bill.  ¶   We can do it together. You know and I know it’s the toughest, most efficient, most effective border security bill this country has ever seen.” (Joe Biden, President of the United States; qtd. by Laura Barrón-López in “Biden and Trump Visits to Border Highlight Conflicting Immigration Policies”)
     A week later, President Biden again called for strategic bipartisanship concerning border security in his State of the Union address delivered on 3/7/2024. In response, Sen. Katie Britt (R-Ala.), following Donald Trump’s lead, engaged in more polarizing demagoguery, making a false claim about sex trafficking by Mexican drug cartels, and suggestively juxtaposing sensational events which occurred in Mexico during President George W. Bush’s administration with President Biden’s border policies: “During the Republican response to the State of the Union on Thursday [3/7/2024], Britt told a graphic story involving sex trafficking and rape to criticize Biden’s immigration policies.  ¶   ‘When I first took office, I did something different. I traveled to the Del Rio sector of Texas, where I spoke to a woman who shared her story with me. She had been sex trafficked by the cartels starting at age 12,’ Britt said. ‘President Biden’s border crisis is a disgrace. It’s despicable. And it’s almost entirely preventable.’  ¶   An independent reporter later revealed in a TikTok video that the woman in question was [Karla Jacinto Romero], who met with Britt and two other senators in January 2023.” (“Sex Trafficking Survivor Slams Britt for Inaccurate Story in SOTU Response: ‘And I think [Britt] should first take into account what really happens before telling a story of that magnitude,’ Karla Jacinto Romero said” by Kierra Frazier; POLITICO, 3/11/2024) See also “Katie Britt Offers Explanation for Sex Trafficking Story … Kind Of: Former AP reporter Jonathan M. Katz first drew attention to the cloudy details of the story in a roughly seven-minute TikTok video” by Kelly Garrity (POLITICO, 3/10/2024).
     Listening to her speech, I found the casual juxtaposition of “a woman who ... had been sex trafficked by the cartels starting at age 12” and “President Biden’s border crisis” jarring, wondering what the one had to do with the other. Even as I found the senator’s rhetoric misleading, it never occurred to me that the spokesperson for the GOP would fabricate such a sensational current event for national television. Senator Britt insinuated that she has more authentic insights into “President Biden’s border crisis” than her colleagues in the Senate (“When I first took office, I did something different. I traveled to the Del Rio sector of Texas ...”), but in reality, her kitchen-table demagoguery has more in common with Donald Trump’s Humpty Dumpty border narratives — where facts and words mean whatever Mr. Trump wants them to mean — than not.
     The Christian bible warns us again and again to beware “false Prophets, and forgerers of false doctrine” (Thomas Wilson, A Christian Dictionarie, in 4 parts, 1612, 2.7), both political and spiritual. This warning holds especially for this-worldly hot-button political issues, such as a border crisis, which are reliable money-makers for polarizing media and personalities. I believe that GOP presidential candidate Donald Trump and Senator Katie Britt have proven to be “False Prophets and Teachers, who (like Dogs) impudently barke against the truth, and shamelesly raile against the true Teachers” (Thomas Wilson, A Christian Dictionarie, in 4 parts, 1612, 1.108) when it comes to evaluating and messaging the complexities of our national security and failed border policies (for which I blame a dysfunctional Congress). We need honest truth-telling — not more Humpty Dumpty-style partisan fantasies — about the growing crisis at our southern border, if we are to come up with effective policy reforms.
     For some truth-telling from the southern border, I recommend recent PBS NewsHour reporting by Amna Nawaz, including her interview with an actual human trafficker working our southern border in 2024 (not during the George W. Bush administration!): “As Global Migration Surges, Trafficking Has Become a Multi-Billion Dollar Business” (aired 3/11/2024). Nawaz followed this with reporting on surging migrant crossings at the Arizona-Mexico border (“one of the busiest border sections this year”): “Migrants from All Over the World Make their Way to Arizona’s Southern Border” (aired 3/12/2024). And she concluded her on-location reporting with “Thousands of Unaccompanied Children Make a Dangerous Trek to the U.S. Southern Border” (aired 3/13/2024), which paints a very different portrait of the mass of approximately 6,000 migrants crossing our southern border every day, than do Trumpworld demagogues.
     Contrary to the teachings of Humpty Dumpty narratives gaining traction within the GOP, our border crisis was not created by the Biden administration, nor can it be miraculously fixed by strongman executive action. This point was made repeatedly by Homeland Security Secretary Alejandro Mayorkas during his PBS NewsHour interview with Amna Nawaz, “‘We Have Not Given Up on Congress’ to Act on Immigration Reform, Mayorkas Says” (aired 3/15/2024): “Amna, a couple points, very importantly, that what we are experiencing at the southern border is reflective of what the world is experiencing — the largest number of displaced people around the world since World War II, if not before then.  ¶   And so [you] mentioned the different nationalities of the individuals arriving at our border. That is what other countries across the Atlantic are experiencing (and around the world), number one.  ¶   Number two, the answer is exactly what the bipartisan group of senators presented to Congress. And that is legislation that provides for much-needed fixes to what everyone agrees is a broken system, and much-needed resources to implement those fixes. Legislation is what is needed. That is what is enduring.  ¶   Executive actions in the past have been challenged in the court, and executive actions without the accompanying resources will not meet the moment. [...] We have not given up on Congress in terms of its ability to actually fulfill its responsibility to the American people.  ¶   We are always considering what we as an administration can do in the shadow of Congress’ failure to act, but we continue to believe that Congress must and can act. We must have them deliver the solution, rather than live with the problem.” (Alejandro Mayorkas, n. pag.)

18.   It is noteworthy that this “very conservative bipartisan border bill that fixes the problem at the border” (Sen. Chris Murphy, lead negotiator for Senate Democrats) is endorsed by such conservative stalwarts as the Wall Street Journal editorial page, the Chamber of Commerce, and the union of border patrol agents aligned with former President Trump, the National Border Patrol Council. As such, the real reason “one of the most significant pieces of immigration legislation in years” was canceled without even a public hearing has nothing to do with legitimate debates over immigration policy, and everything to do with presidential politics. According to President Biden, “‘For the last 24 hours he’s [GOP presidential-candidate Trump] done nothing, I’m told, but reach out to Republicans in the House and the Senate and threaten them and try to intimidate them to vote against this proposal,’ Biden said. ‘It looks like they’re caving. Frankly, they owe it to the American people to show some spine and do what they know to be right.’” (qtd. in “Republicans Are ‘Caving’ — Biden Blames Trump As Border Deal Falters: The Senate has yet to vote on the national security package, but the president is already pinning its demise on his likely 2024 rival” by Myah Ward; POLITICO, 2/6/2024)
     The GOP’s real reason for sabotaging, at the last minute, four months’ of expensive government deliberation and legislative activity is because Donald Trump, who desperately wants an historic border deal negotiated on his watch, is not president: “Sen. John Cornyn (R-Texas) is the latest senior GOP conference member to say he’d oppose advancing the legislation this week, arguing that lawmakers ‘need more time’ but adding: ‘I’m pretty confident we can do better with a new president who actually will enforce the law.’” (qtd. in “Senate GOP Mulls Whether It Wants to Delay or Outright Kill Bipartisan Border Deal: The only question is whether voting no means delaying consideration or actually killing the bill” by Anthony Adragna and Ursula Perano (POLITICO, 2/6/2024) Given that President Biden has promised to sign and enforce this “very conservative bipartisan border bill that fixes the problem at the border” (and in which his White House is heavily invested), Senator Cornyn’s trumped-up objection to advancing the bill is nonsensical. “‘This is the new Republican line on the border: it’s an emergency, but it can wait 12 months — or until the end of time,’ [Senate Majority Leader Chuck Schumer] said. ‘What utter bunk.’” (qtd. in “Senate GOP Mulls Whether It Wants to Delay or Outright Kill Bipartisan Border Deal: The only question is whether voting no means delaying consideration or actually killing the bill,” n. pag.) And from GOP Senator James Lankford — “somebody who has spent a long time studying the border. He’s been down there dozens of times, he knows the statutes inside and out ...” (Sen. Chris Murphy, who negotiated with Sen. Lankford and others for 4 months on the bipartisan border bill; qtd. in “‘No One Is in Charge Over There Right Now’: A Top Senate Dem on the GOP’s Border Meltdown,” n. pag.) — “Are we as Republicans going to have press conferences and complain the border’s bad and then intentionally leave it open after the worst month in American history in December?” (Sen. James Lankford; qtd. in the 2/5/2024 PBS NewsHour segment, “How the Bipartisan Border Deal Would Transform the U.S. Immigration System,” n. pag.)
     IMO, the Trump faction’s double-talk and double-dealing when it comes to bipartisan action on border enforcement and immigration policies verges on obstruction of the federal government’s “Dispatch and Reputation of the Publick Businesse,” in violation of the constitution’s “intendment,” which puts the public good — “the general welfare” (Preamble to the U.S. Constitution) — before a president’s (let alone a former president’s) private interest.
     Some revealing takes, from those in the know, about what happened:
     •  Ryan Lizza’s interview with a lead negotiator of the bipartisan border deal, “‘No One Is in Charge Over There Right Now’: A Top Senate Dem on the GOP’s Border Meltdown / Sen. Chris Murphy helped negotiate a sweeping bipartisan border bill. Then he watched it fall apart” (POLITICO, 2/10/2024) because “Republicans want an issue, not a solution.”
     •  And a PBS NewsHour interview with the same lead negotiator of the bipartisan Senate deal to fund border security, Israel and Ukraine, “Sen. Murphy on Border Security Bill: ‘This Is an Old-Fashioned Compromise’” (aired 2/5/2024).
     •  A PBS NewsHour interview with Democratic Sen. Joe Manchin, who weighs in on “the most significant immigration law in decades”: “Sen. Manchin Criticizes Colleagues, Says Immigration Deal Fell Apart ‘Because of Politics’” (aired 2/7/2024).
     •  A PBS NewsHour interview with Republican Senator Kevin Cramer, whose failure to support the major bipartisan border security package followed the House’s preemptive cancellation of the bill: “Sen. Cramer on Why He and Other Republicans Aren’t Supporting the Border Deal” (aired 2/6/2024). Senator Cramer tells Amna Nawaz, “I would love, frankly, to move forward with the bill and then start working on it and amending it. [...] take the border piece and work on it a little bit, along with the National Border Patrol Council.  ¶   I mean, according to them — and I met with them today, as a lot of members did — this is much better than H.R.2. There are no resources in H.R.2 to do the very things that H.R.2 says — that the House says they want to get done.  ¶   So I think there’s still room to perfect this and at least make it better, even with our Democratic friends. And I think we should continue that.” However, “this bill is not going to become law, because the speaker of the House says it’s dead on arrival.  ¶   Ironically, the House is trying to impeach the secretary of homeland security, which would be dead on arrival over here. But if dead on arrival is the standard, there’s not a lot of point in spending a lot of political — a lot more political capital, when there are other priorities, even in [...] this bill, that have to get funded, like support for Israel and support for Ukraine.”

19.   Where pragmatists like Senator Cramer have accepted that “dead on arrival is the standard” for divided government in an election year, and are searching for work-arounds to this legislative impasse, Republicans in the House have chosen to waste “a lot more political capital” on impeaching the secretary of homeland security — yet another ineffective act of government from the rage machine directing our political polarization. This latest political spectacle will do absolutely nothing to fix our border security problem — which, I suppose, is the point, if “Republicans want an issue, not a solution.” See “What You Should Know about the Impeachment of Homeland Security Secretary Mayorkas” by Rebecca Santana, of The Associated Press (posted to PBS NewsHour website, 2/13/2024).
     The House proceeded with its mock impeachment of DHS Secretary Alejandro Mayorkas on 2/6/2024, failing on the first vote: “House GOP Fails to Impeach Mayorkas over Border Handling: Republican lawmakers quickly predicted they will bring it back up once Majority Leader Steve Scalise returns from his undergoing treatment for blood cancer” by Jordain Carney (POLITICO, 2/6/2024).
     Once the GOP majority in the House had their one vote advantage back, they pushed through DHS Secretary Alejandro Mayorkas’s sham impeachment on 2/13/2024, a week after Republicans sabotaged the Senate’s bipartisan border deal: “What’s Next for Republicans in Congress after Vote to Impeach Homeland Security Secretary” (PBS NewsHour segment, aired 2/14/2024).
     Determined that Congressional GOP showboating not interfere with executive branch functioning, President Biden’s White House forged ahead with business as usual: “The White House Plan for the Mayorkas Impeachment: Ignore the drama, outsource the fight / The Biden administration is closely monitoring the impeachment fight, but also letting outside groups poke holes in the GOP case” by Myah Ward (POLITICO, 2/17/2024).
     The question now is whether or not such blatantly partisan attacks on the “Dispatch and Reputation of the Publick Businesse” (Act the 47th Concerninge Burgesses Not to Be Arrested; passed by the Virginia “grand Assembly,” 26 April 1652) will generate the kind of backlash they have historically. I expect they might, if recent polls are any indicator. See “Where Voters Stand on Immigration” by Laura Santhanam (posted to PBS NewsHour website, 2/7/2024).
     As reported by the NewsHour’s Lisa Desjardins, “Let’s look at some results from the latest PBS NewsHour, NPR and Marist poll over who [voters] think handles immigration better.  ¶   Now, it may not be a surprise that voters, registered voters, said it’s Republicans, 42 percent, Democrats 30 percent.  ¶   Now, the next highest category was folks who thought neither party would handle it better, 19 percent. This is important because the politics here are what’s driving things, especially for Republicans.  ¶   They see immigration and the border as a key issue that is helping them at the polls. However, when you dig down deeper and ask about approval of members of Congress, let’s look at what registered voters said there. Who do they approve, Democrats in Congress better or Republicans in Congress? Voters feel better about Democrats in Congress.  ¶   Neither, by the way, get a majority approval. Democrats edge out Republicans. But here’s the important part. Let’s look at how each party’s voters looked at their own members. So when you ask Democratic voters, do you approve of your Democratic members of Congress, 77 percent yes. Look at that.  ¶   Republican voters, when asked about Republicans in Congress, barely a majority even approves of members of Congress. Who do Republican voters approve of in our survey? — 84 percent favorable for Donald Trump.  ¶   And that is the problem for Republicans here. Their own voters don’t really like them. Their voters like Donald Trump. They continue to try and be Donald Trump, but they’re not. And they’re not able to come up with any formula that works. And the result is this legislative gridlock on very big issues.” (2/7/2024 PBS NewsHour segment, “What’s Next for Border Policy, Ukraine Aid after Senate Republicans Block Bipartisan Bill,” n. pag.)
     Rather than doing their jobs, partisan legislators loyal to, targeted and/or intimidated by Donald Trump are holding the entire country hostage. President “Biden vented to Manhattan donors that Trump’s GOP reign has made it impossible to legislate, even on supposed Republican terms. Republican lawmakers, Biden lamented, were ‘walking away [from the bipartisan border deal] because they’ve got Donald Trump calling and threatening them.’  ¶   ‘For all the stories the MAGAs have loved to write about his [Donald Trump] chess-playing ability, he can’t play checkers. That’s what this immigration [bill] really shows,’ [Jeff] Timmer [a senior adviser to the anti-Trump Lincoln Project and the former executive director of the Michigan Republican Party] said. ‘The Republicans have really overplayed their hand with this and given Biden and his stakeholder world an opportunity to really turn the tables on him.’” (qtd. in “‘It’s Devastating’: Trump Seizes Unmatched Control over GOP / Trump’s influence was felt across the country, from Nevada to Congress to the Republican National Committee” by Christopher Cadelago and Adam Wren; POLITICO, 2/9/2024)
     EDITED  I fail to see how “hazarding the subvertion of the whole government” (An Act for the Better Preservation of the Peace of Virginia, and Preventing Unlawfull and Treasonable Associations; statute enacted 16 April 1684) is a winning strategy that benefits the U.S. commonweal.
     The sort of political thuggery modeled by Donald Trump is no substitute for honest persuasion and negotiation. Bullying others into I-win-you-lose situations is not deal-making (let alone artful deal-making!). Trump acolytes like Kari Lake — “a preeminent election denier and candidate running to unseat independent Arizona Sen. Kyrsten Sinema, who helped negotiate the border deal” — threaten all of us when they boast that “‘I’m coming,’ she said, pitching her planned Arizona comeback as being in service to Trump and his movement. ‘And I’m bringing my sledgehammer with me.’” (Kari Lake; qtd. in “‘It’s Devastating’: Trump Seizes Unmatched Control over GOP,” n. pag.)
     Most of us do not like to be strong-armed by bullies (be they within or outside of government). Regardless, cable news & social media’s polarizing rage machine is very lucrative because it works. See, for example, Peder Schaefer’s Q&A with Greg Haas, “‘A Palpable Fear of Even Letting Your Friends Know You Are a Democrat’: In deep red Wyoming, a Democratic Party organizer says inflamed political tensions are his greatest hurdle” (POLITICO, 2/7/2024).
     But while some of us lean into “America’s increasingly toxic political culture,” more of us are growing tired of “adversarial hatemongering” and “this angry style of dehumanizing communication” dominating our national politics. We want real fixes for our real problems, rather than more posturing about manufactured grievances. “I don’t think the culture war divide is nearly as big as some people would like us to believe it is. Those large divisions are happening in places of power, not here on Main Street, not here in my neighborhood. The culture war is something that is taken advantage of, unfortunately. But I think as a voting population, we’re smarter than that.” (Greg Haas, n. pag.)

20.   Bipartisan deal-making — whatever the issue — is an existential threat to former-President Trump’s brand of polarizing politics, dead set on denying “we’re all in this together.” Nowhere is the Trump faction’s disregard for the commonweal clearer than in that other casualty of Republican obstruction of “the toughest and fairest bipartisan border security bill in decades” (White House spokesperson “Angelo Fernández Hernández”) — U.S. aid to Ukraine, for which polls show dwindling bipartisan support within the country and among our elected representatives. See “U.S. Adults Split along Party Lines in Support for Ukraine Military Aid, AP-NORC Poll Finds” by Stephen Groves and Linley Sanders, for The Associated Press (posted to PBS NewsHour website, 2/29/2024).
     As long as social media, cable news, talk radio, political parties & politicians are able to monetize the culture wars, the polarization will continue. Speaker Johnson’s latest excuse for blocking passage of aid to Ukraine is another phony either/or binary construction: that Congress “must take care of America’s needs first.” I see no reason why the people’s legislature can’t multitask and deal in real-world both/and complexities instead. Besides, aid for Ukraine is not the zero-sum game for USers that the polarizers present. In truth, the aid package “takes care of America’s needs” as well as Ukraine’s. This was remarked on by one of the AP-NORC Poll’s respondents, “Chris Bahr, a 41-year-old from Houston, Texas, who described himself as libertarian politically, [and] said he liked the fact that most of the funding for Ukraine would be spent on U.S.-made weapons. He wanted Congress to approve the aid package ‘as soon as possible.’  ¶   ‘It helps another allied country defend itself and helps America economically — getting rid of a lot of our older weapons as we’re ordering new stuff,’ Bahr said. ‘I think it would save lives in the long run just to not let Russia become expansionist again.’” (qtd. in Stephen Groves and Linley Sanders, n. pag.)
     As reported elsewhere by Eli Stokols, Jennifer Haberkorn, Adam Cancryn, Lauren Egan and Ben Johansen, “Nearly two-thirds of the $60 billion allocated for Ukraine in the defense supplemental that cleared the Senate would be spent in America. That’s another $38.8 billion that would be invested in what’s known as the ‘DIB,’ or defense industrial base. Of that, $20 billion would be allocated for purchasing new weapons and equipment to refill U.S. inventories depleted by the effort to arm Ukraine. The remaining $13.8 billion would be spent on new weapons made by U.S. defense contractors that would be sent straight to Ukraine.” (“The Struggle to Sell Ukraine Aid” [POLITICO, 2/29/2024]; this article includes a U.S. map showing the industrial base impacts of the Ukraine Security Assistance bill) As such, “Republican claims that the aid package amounts to a ‘giveaway’ to politicians in Kyiv” are false.
     At this point (February–March 2024), were House Speaker Mike Johnson to bring the $95.3 billion foreign aid package from the Senate (which includes the help for Ukraine) up for a floor vote, it would pass with majority bipartisan support. Thus, he prevaricates, insisting the House won’t be “rushed” into approving a national security supplemental spending package which the Trump faction opposes, precisely because that faction (of necessity) remains “unconvinced by the narrative that an attack on Ukraine is an attack on all of us.” (Nicholas Vinocur, “Why the West Is Losing Ukraine: U.S. Republicans Blocking Aid. European Right-Wingers Pushing to Abandon Kyiv. Ultra-Cautious Leaders. What Is the West’s Real Strategy?”; POLITICO, 2/21/2024) Cf. “4 Myths about Ukraine that Might Sound Right but Are Actually Wrong: Two years after the Russian invasion, some myths have been dispelled, but new ones have taken hold” by Eric Edelman and David J. Kramer (POLITICO, 2/22/2024).
     In the meantime, House members are working on an alternative foreign aid and border security package, “aimed at flipping GOP lawmakers who contend the U.S. shouldn’t approve more Ukraine funding without addressing the migrant crisis at the U.S.-Mexico border.” See “Biden, Lawmakers Hammer Ukraine Aid Holdouts after Navalny Death: At the White House, the Pentagon and on Capitol Hill, Ukraine backers amp up the pressure on Republican holdouts” by Connor O’Brien and Lara Seligman (POLITICO, 2/16/2024).
     Known as the Fitzpatrick-Bacon package, this latest “border security” legislation may make it on to the House Calendar in March: “House Foreign Affairs Committee Chair Michael McCaul of Texas, a Ukraine supporter, said Congress ought to pass a supplemental in March to help Kyiv with a planned counteroffensive in April — and that he anticipates Johnson to work in that timeframe.” (Connor O’Brien and Lara Seligman, n. pag.)
     But whether there is bipartisan support for this House bill, as there is for the Senate’s national security supplemental bill passed on 2/13/2024, is doubtful: “It’s unclear how lead House Democrats will react to the bill. House Appropriations Committee ranking member Rosa DeLauro (D-Conn.) threw cold water on the emerging bill on Thursday [2/15/2024], saying that Johnson should bring the bipartisan Senate-passed supplemental to the House floor immediately. Asked about the Fitzpatrick-led efforts, she said: ‘Wrong question.’  ¶   ‘I told you what I’m open to. Bring the damn thing up and let’s vote on it,’ she told reporters.” See “Senate Passes $95B Aid Package for Ukraine, Israel and Taiwan Despite Trump Attacks: Speaker Mike Johnson signaled opposition to the package on Monday, saying the House will ‘continue to work its own will’” by Ursula Perano, Burgess Everett and Kierra Frazier (POLITICO, 2/13/2024).
     There is also still a glimmer of hope that the Senate’s original bipartisan border deal could be resurrected. “Even as Republican governors publicly fell back on partisan calls for Biden to take executive action to ease the border crisis, Andy Beshear, the Democratic governor of Kentucky, insisted to reporters that behind the White House’s closed doors there were ‘both Democrats and Republicans that want a solution and that don’t think that Congress can simply sit on the sidelines.’  ¶   Tim Walz, the Democratic governor of Minnesota, said if he was running as a Republican in a state where federal lawmakers wouldn’t vote for the border bill, ‘I would be nervous, because we’re going to beat the hell out of them for not doing this, because these are the fixes — and they don’t deny these are the fixes.’  ¶   Walz, at a roundtable hosted by the Democratic Governors Association, recounted how he had asked Republican governors at the White House meeting who would support the bill and what parts of it they disagreed with.  ¶   ‘There was no answer,’ he said.  ¶   Still, Democratic North Carolina Gov. Roy Cooper expressed hope that the legislation could still pass.  ¶   ‘We’ve seen a lot of big legislation over the decades sometimes spring back to life,’ Cooper told reporters. ‘If Republican and Democratic governors got together and said this legislation is important for our national security and for people living in our states, it would be a powerful thing.’” (“‘Biden Needs to Do his Job’: Republican Governors Reject President’s Border Deal Push / Biden told a bipartisan group of governors at the White House on Friday that he’s exploring what executive actions he can take to curb crossings at the southern border but that he’s running into potential legal roadblocks” by Lisa Kashinsky; POLITICO, 2/25/2024)

21.   “Researchers at Stanford studying polarization told me last year that this kind of public act by leaders can make a real difference in ratcheting down partisan animosity.” (Judy Woodruff, “How Governors Are Working on Solutions Amid Intense Political Polarization,” another episode in her series, America at a Crossroads; PBS NewsHour segment, aired 2/28/2024)
     Woodruff’s interesting interview with two of these governors (first-term Republican governor from Utah, Spencer Cox, and first-term Democratic governor from Maryland, Wes Moore), seeking to collaborate on both/and solutions that serve the commonweal, confirmed Governor Cooper’s intuition (see above, No. 19) about the increased productivity if “Republican and Democratic governors got together” to support “the toughest, most efficient, most effective border security bill this country has ever seen” (President Joe Biden, qtd. in “Biden and Trump Face Off at Southern Border in Dueling Visits: The competing appearances set the opening scene for a general election rematch” by Myah Ward, Eli Stokols and Lisa Kashinsky [POLITICO, 2/29/2024]; and qtd. by Laura Barrón-López in the PBS NewsHour segment, “Biden and Trump Visits to Border Highlight Conflicting Immigration Policies,” aired 2/29/2024).
     Woodruff asked Governor Moore “how you work through some of the most difficult, most divisive issues of our time. One of them is immigration.  ¶   What’s an example of a way to even talk about immigration that would be productive?”
     “[GOV. WES MOORE:] Yes.  ¶   I think the thing that we can all fundamentally agree to is that the system that we have in place right now, it does not work. And so the reason that I signed a letter with eight other governors saying that we are urging Congress to move on this — what was so frustrating watching a bill that was literally worked on with the president, Democrats, and even conservative Republicans, like Senator Lankford, to go down in flames — why it was so frustrating — is that the consequences fall on our shoulders.  ¶   And that’s why we need a measurement of action.
     “[JUDY WOODRUFF:] So could you, Governor Cox — you’re a Republican. You have seen what’s happened. You heard — you know that it’s the Republicans in the House who are saying, we’re not going to go along with this.  ¶   What’s a way through this?
     “[GOV. SPENCER COX:] Well, the way through is, unfortunately, we need Congress to start doing their job and the president to enforce the laws. Those — it’s really that simple.  ¶   This is the least divisive of the most divisive issues. If you poll Republicans and Democrats, everyone agrees. They just do. Democrats believe we need to secure the border and Republicans believe we need to fix illegal immigration. I can tell you right now, if Governor Moore and I were asked to solve this problem, even if you just had all 50 governors solve this problem, we could sit down and do it in a weekend.” (n. pag.)

NEW  22.   Factional, do-nothing legislatures determined not to give a win to the other side are emboldened by polarizing rhetoric which amplifies grievances and simplistic feel-good solutions. See, for example, “Why Trump’s Alarmist Message on Immigration May Be Resonating Beyond his Base” by Will Weissert and Jill Colvin of The Associated Press (posted to the PBS NewsHour website, 4/1/2024). They report: “President Joe Biden and his allies discuss the border very differently. The Democrat portrays the situation as a policy dispute that Congress can fix and hits Republicans in Washington for backing away from a border security deal after facing criticism from Trump.  ¶   But in a potentially worrying sign for Biden, Trump’s message appears to be resonating with key elements of the Democratic coalition that Biden will need to win over this November.  ¶   Roughly two-thirds of Americans now disapprove of how Biden is handling border security, including about 4 in 10 Democrats, 55 percent of Black adults and 73 percent of Hispanic adults, according to an Associated Press-NORC Center for Public Affairs Research poll conducted in March [2024].”
     Trumpty Dumpty (yes, it’s my turn now to indulge in some demagoguery!  ;-) has an undeniable talent for tapping into growing resentment in multiple segments of the U.S. population “that already feels forgotten and dismissed by the experts and elites” (Nicholas F. Jacobs, “What Liberals Get Wrong About ‘White Rural Rage’ — Almost Everything: The ‘White Rural Rage’ narrative gets the research wrong. I know, because some of it is mine,” 4/5/2024, n. pag.)
     It’s easy to view an influx of migrants as a zero-sum game. “Vetress Boyce, a Chicago-based racial justice activist, was among those who expressed frustration with Biden’s immigration policies and the city’s approach as it tries to shelter newly arriving migrants. She argued Democrats should be focusing on economic investment in Black communities, not newcomers.  ¶   ‘They’re sending us people who are starving, the same way Blacks are starving in this country. They’re sending us people who want to escape the conditions and come here for a better lifestyle when the ones here are suffering and have been suffering for over 100 years,’ Boyce said. ‘That recipe is a mixture for disaster. It’s a disaster just waiting to happen.’  ¶   Gracie Martinez is a 52-year-old Hispanic small business owner from Eagle Pass, Texas, the border town that Trump visited in February when he and Biden made same-day trips to the state. Martinez said she once voted for former President Barack Obama and is still a Democrat, but now backs Trump — mainly because of the border.  ¶   ‘It’s horrible,’ she said. ‘It’s tons and tons of people and they’re giving them medical and money, phones,’ she said, complaining those who went through the legal immigration system are treated worse.” (Will Weissert and Jill Colvin, 4/1/2024, n. pag.)
     All of this is true. But each is a partial truth when it comes to what is an overwhelming — and rapidly evolving, thanks to climate chaos — global migration crisis which, like it or not, we’re all in together. Contrary to Trumpty Dumpty’s recent assertions about “Biden’s Border Bloodbath” and active “conspiracy to overthrow the United States of America” — “I stand before you today to declare the Joe Biden’s border bloodbath. This is a border bloodbath. Ends the day I take the oath of office. It ends.” & “With your vote, I will seal the border. I will stop the invasion. I will end the carnage.” (Donald Trump, qtd. in Lisa Desjardins’s 4/3/2024 segment for the PBS NewsHour, “Anatomy of a Donald Trump Speech”) — there is no personal cause or solution to the growing humanitarian crisis at our southern border.
     Trumpty Dumpty’s hyperbole about how Democrats and migrants are the enemy actually makes it less likely that he has a sophisticated enough grasp of border & immigration complexities to be part of a truly effective (not just a feel-good) solution. In particular, he seems oblivious to “the changing face of who is coming to the United States”, probably because it does not comport with his border narrative selectively highlighting “Joe Biden’s border bloodbath” / “carnage” / “invasion” of the “animals” / “migrant crime.” PBS NewsHour’s Amna Nawaz has recently provided an updated view of what “Joe Biden’s border bloodbath” actually looks like on the ground, versus from behind Trumpty Dumpty’s trademarked physical and rhetorical walls. Let me selectively highlight the following migrant profiles from her multi-part series:
     •  the 5-year-old “animal” from Venezuela whose mastermind “criminal” scheme for invading the U.S. is to visit Disneyland: “I’m going to the Disney castle.” (Jason, a Venezuelan emigrant, through interpreter; qtd. in “A Look Inside the Journey Asylum Seekers Make through Mexico to Reach U.S. Border,” 4/3/2024, n. pag.)
     •  the 3 sisters — aged 14, 13, and 8 — who have trekked to “the most inhospitable terrain on the Southwest border” (the Tucson Sector, which covers 262 border miles in Arizona), by themselves, from Chiapas (the southernmost state in Mexico), in order “to reunite with their mother, their sole provider, who came to the U.S. 7.5 years ago to support the family [...] The girls, like everyone here, are now just waiting to turn themselves into Border Patrol. Virtually all will seek asylum in the U.S., a legal protection that takes years to formally determine.  ¶   But, for now, with a snack, water and reassurance from Pastor Randy that transport would eventually come, spirits seem high. [...] But, after we leave, that excitement turned to worry. In a moment of confusion, as night fell over the desert, the girls are left behind by a Border Patrol van.  ¶   Their mother alerted NewsHour. We alerted Border Patrol, who carried out an overnight rescue of the girls. Last week, the sisters reunited with their mother, three more survivors of a dangerous journey who’ve reached their next safe space, whatever the path ahead.” (Amna Nawaz, “What Asylum-Seekers Face at the U.S. Border after a Grueling Journey through Mexico,” 4/4/2024, n. pag.)
     For the record, let us note that the U.S. Senate’s bipartisan border bill (which Trumpty Dumpty had canceled), would have promptly addressed this humanitarian crisis, with much-needed reforms to the asylum system and added resources for U.S. Customs and Border Protection agents like Stephen Cristinzio, tasked with caring for the shape-shifting mass of emigrants seeking refuge in the U.S.
     “[STEPHEN CRISTINZIO:] It makes it incredibly difficult for us to respond in a quick manner.  ¶   For us, the number one thing with the give-up groups is safety and preservation of life. We triage things in that manner.
     “[AMNA NAWAZ:] Driving that border with Agent Cristinzio, we quickly get a sense of what his team is managing. This group of 17 migrants, all Mexicans, crossed the border just moments earlier through a broken section of the border fence.  ¶   The pace of what Border Patrol calls ‘give-ups,’ or people turning themselves in, is relentless. Apprehensions in this part of Arizona were up 30 percent in March compared to a year ago and just down from record levels a few months ago.” (n. pag.)
     As for Trumpty Dumpty’s fanciful use of the term “invasion” in this context:
     “[cattle rancher JIM CHILTON:] When you have eight to 10 million people coming into the United States, one could almost say it’s an invasion.
     “[AMNA NAWAZ:] But opinions on this frontier differ. Chilton’s neighbor, just down the road, doesn’t see it exactly the same way.  ¶   Cattle rancher Lori Lindsay’s property also runs along the Mexico border. [...] Lindsay says she’s never felt threatened here. And she doesn’t put much stock in the immigration debate among people thousands of miles away.
     “[cattle rancher LORI LINDSAY:] If you’re not familiar with the border, it sounds very scary. It sounds like we’re being invaded, criminals are coming in to get us. And it’s just not true. I mean, not that there isn’t a problem. There is a problem with the cartels. We need to deal with those.  ¶   But there are two separate issues going on. You have got that, and then you have got a mother who’s come seven countries away with her young children. I think, how desperate are you? Because I wouldn’t want to do that with my kids.” (n. pag.)

NEW  23.   Our partisan divide over national security is encapsulated in another of Trumpty Dumpty’s arbitrary terms: blood bath (as in, “Joe Biden’s border bloodbath”). There is no evidence of a blood bath, as typically defined — i.e., a massacre (the slaughter of a large number of persons) — occurring at the U.S. southern border. There is, however, plenty of evidence of the blood bath presently inundating Ukraine, not to mention the blood bath to come in that region should Vladimir Putin be victorious in his existential war on that sovereign country. When asked what will happen if Trump loyalists and an extremist faction within the GOP-led House of Representatives succeed in canceling President Joe Biden’s long-delayed $60 billion package of support for Ukraine, Ukraine’s “president of the people” painted a more realistic picture of the blood of patriotic innocents running in the streets: “What would Putin do if Ukraine doesn’t get the Western help it needs to win? ‘He would completely destroy everything. Everything,’ Zelenskyy told Axel Springer media. Ukrainian cities will be reduced to rubble; hundreds of thousands will die, he said.  ¶   ‘People will not run away, most of them, and so he will kill a lot of people. So how it will look like? A lot of blood.’” (Ukrainian President Volodymyr Zelenskyy, qtd. in “Ukraine Is Heading for Defeat: The West’s Failure to Send Weapons to Kyiv Is Helping Putin Win his War” by Jamie Dettmer; POLITICO, 4/17/2024, n. pag.) Senior officers in Ukraine’s military also “painted a grim forecast of frontlines potentially collapsing this summer when Russia, with greater weight of numbers and a readiness to accept huge casualties, launches its expected offensive. Perhaps worse, they expressed private fears that Ukraine’s own resolve could be weakened, with morale in the armed forces undermined by a desperate shortage of supplies. [...] And there’s the rub. The West has failed to come up with what’s needed, and it in turn is undermining Ukraine’s will to do what it takes.” (Jamie Dettmer, n. pag.)
     In an interview with PBS NewsHour’s Amna Nawaz, Ukrainian President Volodymyr Zelenskyy struggled to make sense of the congressional double standard concerning aid for Israel (which the Trump faction has decoupled from border security, so as to expedite) vs. aid for Ukraine (which the Trump faction is holding hostage until House Republicans can extract partisan border security victories):
     “[AMNA NAWAZ:] Mr. President, as you know, Republican House Speaker Mike Johnson has said that he is likely to move forward this week to approve aid for Israel, but it’s not yet clear if aid for Ukraine will be part of that effort or not.  ¶   What —
     “[VOLODYMYR ZELENSKYY:] It’s strange.
     “[AMNA NAWAZ:] What — why is that strange to you?
     “[VOLODYMYR ZELENSKYY (through interpreter):] Well, it means that this is not about security. It’s pure politics, and it’s a disgrace for the world and a disgrace for democracy. For those who only speak of democracy, it’s just talk.
     “[AMNA NAWAZ:] Why is it a disgrace? Why do you use that word?
     “[VOLODYMYR ZELENSKYY (through interpreter):] Well, if the Congress will divide this assistance after everything that happened, will divide into Israeli and Ukrainian, then it means that this is a matter of elections in the United States. It’s a matter of pure politics that now, when the whole world is saying, how could Iran strike Israel? So now we need to support only Israel and forget what is happening in Ukraine.  ¶   This is pure politics. Nobody cares how many people are dying in Ukraine every day. They only care about their approval ratings. That’s what it’s all about. They’re forgetting that dead people don’t care about ratings. If Ukraine falls and there’s a war on other NATO member countries, and there will be a war, and then the U.S. soldiers will be defending and dying.  ¶   That’s what it’s going to be. People in Congress need to think twice about pushing these political matters with regards to support in Ukraine and vote to support all of the countries whose lives depend on it [U.S. foreign aid].” (see the PBS NewsHour segment, “Exclusive: Zelenskyy Says without U.S. Aid ‘We’ll Have No Chance of Winning’”; aired 4/15/2024, n. pag.)
     While I agree with President Zelenskyy that the hold-up of Ukrainian aid is less “about security” than it is about partisan politics, I also think that those of us who support Ukraine in the world struggle over sovereignty need to recognize that blocking more foreign aid for Ukraine is part of a larger policy dispute over national security, which is taking on a new isolationist meaning in Trumpworld.
     I, too, believe that sacrificing Ukraine to a reconstituted postliberal world order, where New Right “aristopopulists” like Donald Trump and Vladimir Putin are on the ascendant, would be a travesty. But if we are to prevent this, we need to take on polarizing Trumpty Dumpty-style isolationist fantasies, and make a much stronger case linking the national security of our two sovereign nations. President Biden is attempting this; see for example his op-ed, “Moment of Truth on Ukraine and Israel: Both countries urgently need U.S. aid to defend themselves against brazen adversaries that seek their annihilation” by U.S. President Joe Biden (The Wall Street Journal, 4/17/2024). Here he notes that “If Congress passes military aid for Ukraine and Israel, we won’t write blank checks. We’d send military equipment from our own stockpiles, then use the money authorized by Congress to replenish those stockpiles — by buying from American suppliers. That includes Patriot missiles made in Arizona, Javelin missiles made in Alabama, and artillery shells made in Pennsylvania, Ohio and Texas. We’d be investing in America’s industrial base, buying American products made by American workers, supporting jobs in nearly 40 states, and strengthening our own national security. We’d help our friends while helping ourselves.” (Joe Biden, n. pag.)
     As we see with Senator J. D. Vance’s aggressive moves to sway U.S. lawmakers and voters — scil. “Senate Conservative Wades into House GOP’s Foreign Aid Mess: Ohio Republican J.D. Vance urged a large group of GOP lawmakers to block debate on Speaker Mike Johnson’s bills” by Olivia Beavers (POLITICO, 4/17/2024); and “Janet Yellen’s Ukraine Mission: The Treasury secretary is trying to rally fellow finance ministers gathering in Washington to get behind the idea of seizing billions in Russian assets” by Zachary Warmbrodt (POLITICO, 4/17/2024) — more than just Ukraine’s national security is at stake. In rallying opposition to the REPO Act (proposal to grant seizure authority for Russian assets), another bill with bipartisan support which he hopes to undermine, Senator Vance argues “that it poses potentially dire consequences for the Western financial system and could hinder a future President’s ability to negotiate an end to the Russia-Ukraine conflict.’” (Zachary Warmbrodt, n. pag.) Clearly, the future president he has in mind is Donald Trump.
     EDITED  Foreign aid for Ukraine has thus become a flashpoint in the forthcoming struggle over what kind of democracy we want to be, with the Trump faction (in alliance with the New Right) intentionally “hazarding the subvertion of the whole government” (phrasing from An Act for the Better Preservation of the Peace of Virginia, and Preventing Unlawfull and Treasonable Associations; statute enacted “att a Generall Assembly, begun at James Citty,” 16 April 1684).
     Their greater goal is to “break” (destroy) the liberal “deep state” (and current global order) and replace it with a postliberal democracy. Senator “Vance is deeply skeptical of the so-called rules-based international order — the system of laws, norms and multilateral institutions established in the years following the Second World War to mitigate global conflict and facilitate international economic activity. As Vance sees it, this system has enriched economic elites while harming working-class people who are rooted in older industrial economies — all while failing to deliver on the ultimate goal of liberalizing non-democratic countries like China and Russia.  ¶   From this perspective, Vance does not see the United States’ decision to defend ‘the principles at the heart of the international rules-based order’ in Ukraine as part of some high-minded and honorable policy. Instead, Vance sees it as a self-interested effort by economic elites to preserve a global order that advanced their interests while screwing over the type of people he represents in post-industrial Ohio.” “In place of the rules-based international order, Vance thinks the U.S. needs to chart a new, more nationalistic system where individual nations are solely responsible for their own security and economic well-being, and more insulated from global economic and military entanglements. According to Vance, the first step toward nudging the world in that direction is ending U.S. aid to Ukraine — which, as became clear this week, depends on convincing his Republican colleagues in the House to kill [Speaker] Johnson’s foreign aid package.” (Ian Ward, “The Grand Strategy Behind J.D. Vance’s Latest Push To Kill Ukraine Aid: Why the Ohio senator and MAGA favorite is going to war against foreign aid”; POLITICO, 4/18/2024, n. pag.)
     If the new postliberal world order envisioned by anti-globalists like Vance and Trump requires a Pyrrhic victory for Vladimir Putin in Ukraine — instead of “a fair peace” (Ukrainian President Volodymyr Zelenskyy, n. pag.), as most who clamor for a negotiated settlement have in mind — so be it.
     For postliberal extremists, the end justifies the means.

EDITED  24.   I want to close this list of pointers regarding government subversion and do-nothing factional legislatures on a hopeful note, with a both/and perspective on border security emanating from the grassroots: “Middle America: Getting Away from Toxic Partisanship / The us-versus-them mentality that is gripping our country doesn’t capture our deep economic and social interdependence” by Ruth Conniff (The Progressive, vol. 86, no. 6, Dec. 2022/Jan. 2023, 18–19).
     According to Conniff, “There are many questions raised by their stories — about migration, labor, the demands of the global economy, and the human and environmental costs of massive consolidation in agriculture. But what stands out the most to me this year, as I travel around talking about my book, is the way the relationship between two groups of rural people who were thrown together by global economic forces beyond their control feels like an antidote to toxic partisanship.” (19)
     Her book is Milked: How an American Crisis Brought Together Midwestern Dairy Farmers and Mexican Workers (New York: The New Press, 2022). Its publisher’s blurb reads:
     “In the Midwest, Mexican workers have become critically important to the survival of rural areas and small towns — and to the individual farmers who rely on their work — with undocumented immigrants, mostly from Mexico, accounting for an estimated 80 percent of employees on the dairy farms of western Wisconsin.
     “In Milked, former editor-in-chief of The Progressive Ruth Conniff introduces us to the migrants who worked on these dairy farms, their employers, among them white voters who helped elect Donald Trump to office in 2016, and the surprising friendships that have formed between these two groups of people. These stories offer a rich and fascinating account of how two crises — the record-breaking rate of farm bankruptcies in the Upper Midwest, and the contentious politics around immigration — are changing the landscape of rural America.
     “A unique and fascinating exploration of rural farming communities, Milked sheds light on seismic shifts in policy on both sides of the border over recent decades, connecting issues of labor, immigration, race, food, economics, and U.S.-Mexico relations and revealing how two seemingly disparate groups of people have come to rely on each other, how they are subject to the same global economic forces, and how, ultimately, the bridges of understanding that they have built can lead us toward a more constructive politics and a better world.”
     This sort of cross-border bridge-building is also featured in “The Ominous News for Democrats in Pennsylvania’s ‘Latino Belt’: In a state that’s poised to play a central role in the 2024 elections, there are growing signs that traditional voting habits are fraying” by Charles F. McElwee (POLITICO, 2/9/2024).
     NEW  For more on the critical role of foreign-born workers in Wisconsin’s dairy industry — and questions as to whether they are sharing in the benefits of their contributions — see John Yang’s interview with ProPublica reporter Melissa Sanchez, who has been investigating the harsh realities of life for immigrant workers on Midwest dairy farms for over a year: “Immigrant Workers Face Routine Injuries, Lack of Protections on U.S. Dairy Farms” (PBS News Weekend segment, No. 1 of 2, aired 3/23/2024). And see Nathan Denzin’s companion report on financial challenges and concerns about the social burden of immigration in the small city of Whitewater in southern Wisconsin: “How a Small Wisconsin Community Is Responding to a Recent Migrant Surge” (PBS News Weekend segment, No. 2 of 2, aired 3/23/2024).
     NEW  And for another perspective on the humanity of the migrant workers being demonized by demagogues, see “A Brief But Spectacular Take on Painting the People who Feed America” (PBS NewsHour segment, aired 4/8/2024). “Narsiso Martinez is an artist whose work celebrates the vital and often invisible labor performed by farmworkers. Martinez’s work is informed by his own experiences as a farmworker, spending summers picking produce in Washington state to support himself while studying at California State University, Long Beach. He gives his Brief But Spectacular take on painting the people who feed America.”

Unfortunately, the desire to “break” our government (Ted Johnson, qtd. in “‘Our System Needs to Be Broken, and He [Trump] Is the Man to Do It’”) by obstructing it whenever possible appears to be catching on in legislatures across the country. Scil. “The Freedom Caucus Has Been Wreaking Havoc on Washington. Now It’s Exporting the Chaos to the States / A growing number of state legislatures are wrestling with their own versions of the obstructionist group” by Peder Schaefer (POLITICO, 3/12/2024), who reports on “the State Freedom Caucus Network, a D.C.-based group that is helping the upstart caucuses go toe-to-toe with the established GOP order. The network pays the salaries of state directors who help legislators read bills, do policy analysis and act as a kind of connective tissue for ideologically similar lawmakers across the nation.” (Peder Schaefer, n. pag.) Among the Republican Freedom Caucus stunts pushed in the Missouri state Senate: “an attention-grabbing draft rule change in January [2024] that would have permitted dueling between state lawmakers to settle disputes.” (Peder Schaefer, n. pag.) While this sort of thing makes for great political theater, it doesn’t “enable lawmakers to pass more conservative legislation”: “‘They are a “let’s govern by bumper sticker” entity,’ said South Carolina state Rep. Micah Caskey, a Republican who is an outspoken critic of the caucus. ‘I have a general contempt for what I see as the lack of integrity and honesty with which they approach legislating.’” (qtd. in Peder Schaefer, n. pag.)

But more broken government is not what the majority of us want, IMO. See, for example, “Oregon High Court Says 10 GOP State Senators Who Staged Long Walkout Can’t Run for Reelection: Last year’s boycott lasted six weeks — the longest in state history — and paralyzed the legislative session, stalling hundreds of bills” by The Associated Press (posted to POLITICO website, 2/1/2024).

Oregon’s GOP senators, whose obstructionist antics caused Oregon voters in 2022 to amend “the state constitution to bar lawmakers from reelection if they have more than 10 unexcused absences,” are “deeply disturbed by the chilling impact this decision will have to crush dissent.”

EDITED  But impeding the government’s “Dispatch and Reputation of the Publick Businesse” (Act the 47th Concerninge Burgesses Not to Be Arrested; passed by the Virginia “grand Assembly,” 26 April 1652) — or “hazarding the subvertion of the whole government” (An Act for the Better Preservation of the Peace of Virginia, and Preventing Unlawfull and Treasonable Associations; statute enacted “att a Generall Assembly, begun at James Citty,” 16 April 1684) by refusing to serve as you were elected to do — is not the same thing as dissent (usually understood as expressing a difference in opinion). There is a proper way (e.g., by petitioning, speechifying, filibustering, voting, proposing alternate legislation) to dissent from “bills on abortion, transgender health care and gun rights” with which lawmakers disagree.

Persons who will not put “the Publick Good” before their own private interests do not belong in public office.

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“the right ... to keep and bear arms” descends from “the King by His Prerogative”

S O R R Y,  but this section is still under construction.

17th-century head-piece showing six boys with farm tools, by Wenceslaus Hollar

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“the People” versus “the Multitude”

S O R R Y,  but this section is still under construction.

17th-century head-piece showing six boys with farm tools, by Wenceslaus Hollar

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In the meantime, some of the arguments which will be presented in this section are summarized in a sidebar entry on She-philosopher.com’s home page.

As I remark elsewhere on this website’s home page, the same confusion of “the people” and “the multitude” which undergirds our late-20th-to-21st-century postmodern and anachronistic interpretation of the Second Amendment, as guaranteeing an individual right to bear arms, also led to January 6th insurrectionists righteously marauding through the Capitol because “the people’s” House is, ipso facto, “my house.”

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The original public meaning of “person”

Until it was anachronistically reinterpreted by an ideological Supreme Court in the 21st century, the U.S. Constitution — specifically, the Second Amendment — made no mention of an individual right to bear arms.

In founding Anglo-American legal texts, the individual is referred to as a “person” (“any person or persons,” “Persons, whether Free, or Servants,” “what person, or persons soever within this Collonye,” etc.). As I have evidenced above, the plural of “person” is “persons” and “multitude,” not “the people” — a term which, since the 17th century, has had a specific sociopolitical meaning, decidedly at odds with what William Strachey called “the headlesse multitude” (“A True Reportory of the Wracke, and Redemption of Sir Thomas Gates Knight; upon, and from the Ilands of the Bermudas: His Comming to Virginia, and the Estate of that Colonie Then, and After, under the Government of the Lord La Warre, July 15. 1610,” in Purchas his Pilgrimes in Five Bookes, by Samuel Purchas, 4 vols., 1625, 4.9.6.3.1749).

The Second Amendment is concerned only with “the right of the people to keep and bear arms,” not the right of the multitude to keep and bear arms. Here, as elsewhere in historical texts, semantics matter.

In Anglo-America’s thick historical tradition of gun regulation, an individual person’s obligation and/or privilege to bear arms was properly a matter, not for charters and constitutions, but of common law, coupled with “the Statutes and Customs of the Realm” (Thomas Blount, Nomo-Lexikon: A Law-Dictionary, 1670, s.v. Law Spiritual, n. pag.), all of which aimed at furthering the “Peace of the King (Pax Regis)” — “that Peace and Security, both for Life and Goods, which the King promiseth to all His Subjects, or others, taken to his Protection” (T. Blount, Nomo-Lexikon: A Law-Dictionary, 1670, s.v. Peace of the King, n. pag.). See, for example, the Maryland statute, enacted in 1658, granting a “person” the privilege of bearing arms, “unlesse such person be proved to beare armes to an Hostile intent, & contrary to the usuall & allowable customs of the Country for each mans defence,” at which point said person could “be disarmed or dispoyled in his armes or ammunic[i]on.”

Just as it is anachronistic to reduce “the people” to individual persons, it is ahistorical to reinterpret “personhood” along ideological lines, ignoring millennia of Western legal tradition.

Sectarians who believe that “personhood begins at conception” have been emboldened by the fall of Roe v. Wade in 2022 to push for “fetal personhood” laws, giving legal rights to unborn children.

The legal fiction of fetal personhood does indeed date to 17th-century Anglo-America, to which English common law protecting the fetus’s private property rights applied. As such, the fetus was supposed “in law to be born for many purposes,” primarily so that

It is capable of having a legacy, or a surrender of a copyhold estate made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to it’s use, and to take afterwards by such limitation, as if it were then actually born.

(William Blackstone, Commentaries on the Laws of England, 4 vols., 3rd edn., 1768, 1.130; emphasis added)

Nonetheless, as Blackstone here makes clear, this kind of legalistic supposition rests on the perceptible distinction between a fetus (potential child, while “an Infant in his Mothers Belly”) and an “actually born” child.

IN ESSE (Anno 21 Jac. cap. 2.) In being Philosophers contra-distinguish things in Esse, from things in Posse, or in Potentia. As, a Childe before he is born, or even conceived, is a thing in Posse, or which may be: After he is born, he is said to be in Esse, or Actual being.

(Thomas Blount, Nomo-Lexikon: A Law-Dictionary, 1670, s.v. In Esse, n. pag.)

Moreover, through at least the 18th century, the fetus — corporeal, but irrational and not yet individuated — was by definition not a “person,” which “Word came at length to import the Mind, as being a Thing of the greatest Regard and Dignity among human Matters”:

PERSON, an individual Substance, of a rational or intelligent Nature.

(Ephraim Chambers, Cyclopaedia, 2 vols., 1728, s.v. Person, 2.793)

As derived from the ancient Greeks,

Person is defin’d an individual, reasonable, or intellectual Substance; or, an intellectual and incommunicable Substance.

(Ephraim Chambers, Cyclopaedia, 2 vols., 1728, s.v. Trinity, 2.251)

Of note, Chambers’ Cyclopaedia was widely read in the Americas, including by founding fathers such as Benjamin Franklin and the influential jurist William Kilty, who cites it in his A Report of All Such English Statutes as Existed at the Time of the First Emigration of the People of Maryland ... (Annapolis, 1811).

Also of note: mere personhood was never any guarantee of civil rights. See, for example, Virginia’s 1699 and 1705 statutes disenfranchising women (femme sole and femme covert), Roman Catholic recusants, and “infants” (minors under 21 years of age).

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In June 2023, I learned from Robin Marty that

Alabama was the first state to ban abortion with no exceptions. It is the only state that has put “personhood” — the idea that a fertilized egg has all the legal rights of a living, breathing, physically independent child — into its constitution.

(see “‘I Underestimated the Depth of Outrage’: A Year in Post-Roe America: Thinkers from across the political spectrum reckon with the dramatic and unpredictable ways the country has already changed since the historic Supreme Court decision” by Robin Marty; posted to POLITICO website, 6/23/2023, n. pag.)

I suppose the people of Alabama can put whatever they want into their state constitution, including a newfangled corruption of the millennia-old legal concept of person (since the Greeks, “an individual, reasonable, or intellectual Substance,” which the fetus is not, regardless of evolving issues relating to viability). But Alabama’s 21st-century establishmentarian push makes a mockery of Anglo-America’s common law traditions and, in my opinion, violates the First Amendment (“CONGRESS shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”).

EDITED  From 1619 until May–June 1776, this (religious establishment) is exactly what legislatures across Anglo-America had done — institutionalize sectarian beliefs which impinged on the “liberty of conscience” of others (e.g., radical Protestant sects such as Hutchinsonians and Quakers, plus Catholics, within Christianity; Jews, plus indigenous theosophists, without Christianity). Moreover, there was always a fine line between political and religious tyranny, as in the case of the charismatic revolutionary planter and politician, John Coode (c. 1648–1709), known to historians as “Maryland’s perennial rebel,” whose incendiary, populist rhetoric was criminalized under Anglo-America’s blasphemy laws, when charges of sedition fell short. Click/tap here to open a second-window aside documenting religious establishments in Anglo-America prior to The First Amendment, all of which extended, rather than abolished, European customs of religious persecution: “Those colonies which had been the most noted as havens of religious tolerance became the most intolerant.” (A. N. Chandler, Land Title Origins: A Tale of Force and Fraud, 42).

Prefiguring The First Amendment (adopted December 1791) by almost two decades, Virginia’s seminal Declaration of Rights (1776) first rejected Anglo-America’s founding tradition of religious establishment:

That religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity, towards each other.

(Article 16 of Virginia’s revolutionary A Declaration of Rights Made by the Representatives of the Good People of Virginia, Assembled in Full and Free Convention; introduced 6 May 1776, adopted 12 June 1776)

As did revolutionary Maryland that same year (1776):

     33.  That as it is the duty of every man to worship GOD in such manner as he thinks most acceptable to him, all persons professing the christian religion are equally entitled to protection in their religious liberty, wherefore no person ought by any law to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice, unless under colour of religion any man shall disturb the good order, peace or safety of the state, or shall infringe the laws of morality, or injure others in their natural, civil or religious rights; nor ought any person to be compelled to frequent or maintain, or contribute, unless on contract, to maintain, any particular place of worship, or any particular ministry; yet the legislature may, in their discretion, lay a general and equal tax for the support of the christian religion, leaving to each individual the power of appointing the payment over of the money collected from him, to the support of any particular place of worship or minister, or for the benefit of the poor of his own denomination, or the poor in general of any particular county; but the churches, chapels, glebes, and all other property now belonging to the church of England, ought to remain to the church of England for ever. And all acts of assembly lately passed for collecting monies for building or repairing particular churches or chapels of ease, shall continue in force and be executed, unless the legislature shall by act supersede or repeal the same; but no county court shall assess any quantity of tobacco or sum of money hereafter, on the application of any vestrymen or churchwardens; and every incumbent of the church of England, who hath remained in his parish and performed his duty, shall be entitled to receive the provision and support established by the act, entitled, An act for the support of the clergy of the church of England in this province, till the November court of this present year [1776] to be held for the county in which his parish shall lie, or partly lie, or for such time as he hath remained in his parish and performed his duty.
     34.  That every gift, sale, or devise of lands, to any minister, public teacher, or preacher of the gospel, as such, or to any religious sect, order or denomination, or to or for the support, use or benefit of, or in trust for, any minister, public teacher, or preacher of the gospel, as such, or any religious sect, order or denomination; and every gift or sale of goods or chattels, to go in succession, or to take place after the death of the seller or donor, to or for such support, use or benefit; and also every devise of goods or chattels to, or to or for the support, use or benefit of, any minister, public teacher, or preacher of the gospel, as such, or any religious sect, order or denomination, without the leave of the legislature, shall be void; except always any sale, gift, lease or devise, of any quantity of land not exceeding two acres, for a church, meeting, or other house of worship, and for a burying-ground, which shall be improved, enjoyed or used, only for such purpose, or such sale, gift, lease or devise, shall be void.
     35.  That no other test or qualification ought to be required on admission to any office of trust or profit, than such oath of support and fidelity to this state, and such oath of office, as shall be directed by this convention, or the legislature of this state, and a declaration of a belief in the christian religion.
     36.  That the manner of administering an oath to any person ought to be such as those of the religious persuasion, profession or denomination of which such person is one, generally esteem the most effectual confirmation, by the attestation of the Divine Being. And that the people called Quakers, those called Tunkers, and those called Menonists, holding it unlawful to take an oath on any occasion, ought to be allowed to make their solemn affirmation in the manner that quakers have been heretofore allowed to affirm, and to be of the same avail as an oath, in all such cases as the affirmation of quakers hath been allowed and accepted within this state instead of an oath. And further, on such affirmation warrants to search for stolen goods, or the apprehension or commitment of offenders, ought to be granted, or security for the peace awarded; and quakers, tunkers or menonists, ought also, on their solemn affirmation as aforesaid, to be admitted as witnesses in all criminal cases not capital.

(Articles 33–36 of Maryland’s seminal Declaration of Rights; introduced 27 August 1776, adopted 3 November 1776)

Even though “Maryland was an English colony like many others,” Maryland was also “peculiar,” because of its “anomalous politics of religion, specifically the Catholic proprietors’ policy of toleration and the colony’s lack of an established church”:

It was a colony of a Protestant kingdom, governed by Catholics and populated mainly by Protestants, including those who did not conform to the Church of England—in the eyes of many seventeenth-century people, its church affairs were dangerously unmoored from its official structures of authority. Over and over again, colonists, polemicists, and administrators commented on this disquieting state of affairs. Maryland was repeatedly wracked by political disorder in the seventeenth century, never without reference to the subversive qualities of papists, the malice of Protestant nonconformists, or the danger posed by religious diversity in general. That toleration in Maryland proved controversial is surprising only if one sees it through modern eyes: in the seventeenth century, what this sort of confessional arrangement meant and what (if anything) to do about it were questions central to conflicts over authority, legitimacy, and allegiance that brought revolution to the seventeenth-century Anglophone world twice over.

(Antoinette P. Sutto, Loyal Protestants and Dangerous Papists: Maryland and the Politics of Religion in the English Atlantic, 1630–1690, 1–2)

Although Maryland’s unique tradition of disestablishmentarianism never extended religious tolerance beyond Christians, the Catholic proprietors’ institutionalization of “Liberty of Conscience” in the 1630s was remarkable:

To conclude; the Impeopling and Trade of this Province [Maryland], by the vast Expence, Care and Industry of the Lord Proprietary [“the Right Honourable Caecilius Calvert Lord Baltemore ... his Heirs and Assigns”], hath been improved to that height, that in the year 1670, there were reckoned near twenty thousand English planted there.
     And that which keeps them together in the greatest Peace, Order, and Concord imaginable, is the Liberty of Conscience, which his Lordship in prudence allows to all persons that profess Christianity, though of different Persuasions, so that every Man lives quietly and securely with his Neighbor, neither molesting, nor being molested for difference of Judgment in Religion; which Liberty is established there by an Act of Assembly, with his Lordships consent to continue for ever.

(Robert Morden, Geography Rectified, or, A Description of the World, 2nd edn., rev. and enl., 1688, 566)

Morden notes that other provinces in 17th-century Anglo-America (e.g., West New Jersey, East New Jersey, Carolina) experimented with “Liberty of Conscience in Matters of Faith towards God, or the Religious Exercise thereof”:

In this Province of East Jarsey is this further encouragement, there is such good Provision made for Liberty of Conscience, and Property in Estate, by the Fundamental Constitutions or great Charter, on behalf of all the Inhabitants, as Men and Christians, that very many from other parts of America, as well as from Europe, have chosen to go thither to live, where they do not only quietly and freely enjoy their Estates, but also an uninterrupted freedom in the Exercise of their Religion, according to their particular Persuasions.

(Robert Morden, Geography Rectified, or, A Description of the World, 2nd edn., rev. and enl., 1688, 575)

But only Maryland pursued disestablishmentarianism as an answer to the burgeoning challenges of religious conflict during the early-modern period. By 1780, “Established churches and religious persecution became increasingly unpatriotic.” (John M. Murrin, “The Great Inversion, or Court Versus Country: A Comparison of the Revolution Settlements in England [1688–1721] and America [1776–1816],” 400) With the adoption of The First Amendment on 15 December 1791, disestablishmentarianism became the norm across Anglo-America. Now, in 2024, as more and more Christian anti-abortion activists rush to institutionalize their postmodern sectarian readings of biblical texts —

[Alabama Supreme Court Chief Justice Tom] Parker sprinkled his opinion with a litany of religious sources, from classic Christian theologians like St. Thomas Aquinas and John Calvin, to a modern conservative Christian manifesto, the Manhattan Declaration, that opposes “anti-life” measures.
     He also quoted a Bible verse that is legendary within the anti-abortion movement, in which God told the prophet Jeremiah, “Before I formed you in the womb, I knew you.”

(“Bible-Quoting Alabama Chief Justice Sparks Church-State Debate in Embryo Ruling” by Peter Smith and Tiffany Stanley, for The Associated Press [posted to the PBS NewsHour website, 2/23/2024]; for discussion of the “broader implications” of justices embracing sectarian Christian arguments concerning fetal personhood, see Megan Messerly’s Q&A with Mary Ziegler, “A ‘Stunning’ Element of the Alabama IVF Ruling: A legal historian who studies the abortion battle explains why the state Supreme Court’s decision is so momentous” [POLITICO, 2/29/2024])

— we’re seeing an ill-conceived return to the sort of establishmentarianism repudiated by revolutionary Anglo-America in 1776. (In this case, state legislatures are institutionalizing radical sectarian beliefs about “life” which encroach upon the liberty of conscience of those who believe in modern IVF medical treatments. See the PBS NewsHour’s interview [aired 2/29/2024] with Barbara Collura, who notes that “for many years, we have actually been fighting embryo personhood, fetal personhood bills in many states [...] far before Roe v. Wade was overturned. When Roe v. Wade was overturned, we were very, very concerned, because we thought we would see a larger number of these kind of bills, which we did in 2023.  ¶   And we have seen a lot already in 2024. And we don’t have the protection and that backstop of Roe v. Wade if one of these passes.  ¶   And we know that legislators want to regulate IVF. We know that they want to define when life begins.  ¶   And, look, I was in the Capitol, Montgomery, yesterday. I was approached by folks who do not approve of IVF, who want it shut down. And they have a voice, and their voices are being heard, not only in Montgomery, but in other statehouses.”)

In his encyclopedia article on the embryo, Ephraim Chambers cites the French research scientist Denis Dodart (1634–1707), who described a human embryo at 21 days of age as resembling “the Maggot of a Silk-Worm” (E. Chambers, Cyclopaedia, 2 vols., 1728, s.v. Embryo, 1.298).

A member of the prestigious French Academy of Sciences, whose works were well-known in England and America — see, for example, Robert Hooke’s review of the 2nd edn. of Dodart’s Mémoires pour servir á l’Histoire des Plantes for Hooke’s scientific journal, Philosophical Collections, in 1679 — Dodart’s unflattering view of the unborn human offspring during its early stages of development was very much in the Christian mainstream.

Indeed, Enlightenment researchers of various Christian persuasions — exploring the life sciences during the golden age of taxonomy — would have been perturbed by 21st-century attempts to institutionalize such heresies as currently promulgated by zealous sectarian Alabama lawmakers. Extending sinful, unregenerate personhood — which “is attributed to new-borne persons, and is set against the spirit” in the bible (T. Wilson, 1.163) — to a maggot-like human organism — not yet become “children of the flesh,” “[s]uch as are borne by naturall generation” and “commeth into the Worlde, corrupt and vile, infected by sinne” (Thomas Wilson, A Christian Dictionarie, in 4 parts, 1612, 1.52 and 1.162) — would have been judged a fall “unto some Heresie or Idolatry” in previous centuries.

That is, They which are the children of the flesh, these are not the children of God: but the children of the promise are counted for the seed.

(Romans 9:8, as rendered in the King James Authorized Version of The Holy Bible, 1st edn., 1611; this new English translation of the bible, prepared by 54 scholars appointed by King James I, was published a year before — thus creating huge demand for — Wilson’s best-selling A Christian Dictionarie [of note, Wilson used the “seditious” Geneva Bible for his dictionary text, not “the Authorized Version” institutionalized by James I in 1611]) EDITED

EDITED  Early-modern Christians distinguished carefully between a “Life of Nature” — defined as “A power, to move and doe actions tending to selfe-preservation.” (Thomas Wilson, A Christian Dictionarie, in 4 parts, 1612, 1.293) — and “life eternal in Christ.” Neither type of human life began at conception. Common human life (“this Mortall life,” “this bodily life”) was believed to begin at “the time of our byrth,” occasioning “our corruptible bodyes” “in whom Birth-sinne still raigneth” (emphasis added) throughout “the whole course of our life.” Contrary to a sinful “Naturall life” which starts at birth, “eternall Life” is a choice made by willful humans, and occasioned by their spiritual “New-birth” (“To be borne againe by the Spirit, that we may be the Children of God”). Human life forms become “Gods Children” only “after their New-birth” (Thomas Wilson, A Christian Dictionarie, in 4 parts, 1612, 1.334). Such “newnesse of life, or Sanctification” is obviously not an option for ungodly embryos, fetuses, and the “unborn” generated from “corruptible seed.” Hence, for early-modern Christians, there was the born ("a generall pollution and filthinesse of life") and the new-born ("borne by vertue of Gods promise, & not by ordinary course of generation ... all elect which be born anew by faith, in the promise of grace, they are the children of the promise"), but there was no life associated with the unborn — a postmodern life form which is never mentioned in Thomas Wilson’s 800-page A Christian Dictionarie (1612). Nor did early-modern Christians interpret the calling of Jeremiah as a prophet —

Before I formed thee in the bellie, I knew thee; and before thou cameth forth out of the wombe, I sanctified thee, and I ordeined thee a Prophet unto the nations.

(Jeremiah 1:5, as rendered in the King James Authorized Version of The Holy Bible, 1st edn., 1611)

— as bestowing sacred life on the unborn (regardless of whether you read the biblical text literally or figuratively).

EDITED  I belabor this point so as to emphasize that postmodern radical sectarians’ push for heretical fetal personhood laws is of a kind with the sort of historical establishmentarianism that is unconstitutional under The First Amendment because it leads inexorably to religious persecution (as is playing out now in the Russian-occupied territories of Ukraine where, as Simon Ostrovsky reports, the establishment of Russian Orthodox Christianity entails the religious persecution of Ukrainian Evangelical Christians, deemed extremists and “American spies” because “this is an American religion. You must be an agent of the American government”). (And see Ostrovsky’s follow-on piece for the PBS NewsHour, “Ukrainian Evangelical Pastors Show Resilience while Facing Persecution from Russian Forces” [aired 4/24/2024], in which Ostrovsky explains that “The vilification of Pastor Gennadiy’s organization [a Christian orphanage] is no coincidence. Since its invasion, Russia’s propaganda machine has systematically sought to characterize evangelical Christians across occupied Ukraine as extremists or charlatans to justify the seizure of their property and the erasure of their religious communities.”)

EDITED  Unfortunately, we see establishmentarianism trending in the states, most recently with radical sectarians’ opposition to citizen-initiated ballot measures protecting women’s reproductive freedom & religious liberties: “‘There are things that shouldn’t be voted on,’ Jacob Minic, one of the demonstrators, told POLITICO. ‘When it comes to extreme moral issues like this one [i.e., “protecting unborn human life at conception irrespective of the pregnant mother’s competing interests” (Kimberly Wehle, 3/27/2024, n. pag.)], I don’t think it should be on the ballot.’” (Jacob Minic, qtd. in “‘Our Prayer Is that It Doesn’t Even Reach the Ballot’: Inside Arizona’s Abortion Battle / Opponents of the reproductive rights referendum are waging a campaign to discourage voters from signing petitions” by Alice Miranda Ollsteinn; POLITICO, 3/6/2024, n. pag.) See also “Conservatives Move to Keep Abortion off the 2024 Ballot: ‘We don’t believe those rights should be subjected to majority vote’” by Alice Miranda Ollstein and Megan Messerly (POLITICO, 12/18/2023). And see “Conservatives Clash with Trump on Leaving Abortion Up to Voters: The gulf between what Trump said and what anti-abortion groups want underscores divisions that have dogged conservatives for two years” by Alice Miranda Ollstein, who reports that the “array of tactics” favored by zealous protectors of the unborn “includes several bills and ballot measures that would raise the signature-gathering or vote threshold for changing state constitutions, lawsuits to block the initiatives, bureaucratic maneuvers to insert anti-abortion language into the proposals, and street-level confrontations to dissuade voters from signing petitions to put abortion on the ballot.” (POLITICO, 4/12/2024, n. pag.) Furthermore, “roughly half of states don’t allow citizens to collect signatures to put a constitutional amendment on the ballot, meaning millions of people in Texas, the Carolinas and other states with abortion bans have no way to put forward a referendum to overturn them. But for many conservatives, who believe it’s better for elected legislators to set abortion policy than a popular vote, this is a feature and not a bug.” (Alice Miranda Ollstein, 4/12/2024, n. pag.) “‘President Trump says that abortion should come down to the “will of the people,”’ said Lila Rose, founder of the anti-abortion group Live Action. ‘It is not right for democratic societies to vote on the fundamental rights of unpopular minorities. There is no more unpopular minority today than preborn Americans. Abortion is not about the “will of the people,” it’s about respecting the human right that we are endowed with by our creator.’” (Lila Rose, qtd. in Alice Miranda Ollstein, 4/12/2024, n. pag.)

NEW  Such religious establishment is a familiar form of tyranny. For those of us who still believe in the common-sense, longstanding doctrine that “this Mortall life” begins at birth, with the presentation of an individuated being; and for those of us who believe in egalitarian civil rights and liberties for all who have “this bodily life” “in Esse, or Actual being” — such that “I AM A WOMAN NOT A WOMB. PARENT BY CHOICE.” (placard at a pro-women’s sovereignty rally protesting the Arizona Supreme Court’s 4/9/2024 decision upholding an abortion ban passed in 1864) — sectarians’ use of unrepresentative government to thwart reproductive rights referenda and a majority vote on “extreme moral issues” of enormous consequence to each of us, is tantamount to religious persecution.

It was in part “to shine light on a proposed ballot measure that would create a constitutional right to abortion” in Arizona (requiring 384,000 valid signatures by July 4 in order to put the issue on the November 2024 ballot) that state Senator Eva Burch gave a floor speech on 3/19/2024 announcing her personal decision to have a therapeutic abortion, “because her pregnancy is no longer viable” and because “she wants the public to know that the struggles she has experienced [with pregnancy] are common” (see “Arizona Lawmaker Says She Announced Plans to Get Abortion to Underscore Out-of-Touch Laws” by The Associated Press; posted to POLITICO’s website, 3/19/2024). Burch, formerly a nurse practitioner at a women’s health clinic, told the public from the senate floor, “I don’t think people should have to justify their abortions.... But I’m choosing to talk about why I made this decision because I want us to be able to have meaningful conversations about the reality of how the work that we do in this body [Arizona state legislature] impacts people in the real world.” (qtd. in “WATCH: Arizona Lawmaker Says She Plans to Have an Abortion after Learning her Pregnancy Isn’t Viable” by The Associated Press; posted to PBS NewsHour’s website, 3/19/2024) Burch courageously shared the story of her decades-long “rough journey” with fertility, now made even more traumatizing since “the state’s laws have ‘interfered’” with her private medical decision-making. “Arizona law required an ‘invasive’ transvaginal ultrasound that her doctor didn’t order and she was then read ‘factually false’ information about alternatives that was required by law, she said.  ¶   ‘I’m a perfect example of why this relationship should be between patients and providers,’ not state lawmakers, Burch said.” (n. pag.)

Senator Burch expanded on her decision “to turn this sad moment into something that’s powerful and meaningful and has the opportunity to effect change” in an interview with PBS NewsHour’s Amna Nawaz: “Arizona Lawmaker Explains Why She Publicly Announced Decision to End Non-Viable Pregnancy” (aired 3/21/2024). As dictated by Arizona’s post-Roe doctrinal law-making, medical decision-making has been politicized, leading predictably to poor medical outcomes for those who are most vulnerable. As Burch experienced first-hand, instead of accessing best medical practices tailored for each individual patient’s specific situation, women in need of reproductive health care are being force-fed inappropriate, generic medical counsel, as directed by “people who were opposed to abortion who were trying to be coercive and convince me to make a different decision.” (Eva Burch, Democratic whip of the Arizona State Senate, n. pag.) Asked about how we better accommodate liberty of conscience in this matter, Burch responded: “Well, I would say that those people should not have an abortion if they feel comfortable, and if they would want to carry to term themselves.  ¶   But I would say that people don’t have to feel obligated to explain their stories and to explain their situations to others to gain their approval in order to have autonomy over their decision-making and over their health care.  ¶   Now, are there reasons other than a medical necessity or other than a nonviable pregnancy that people get abortions, that can make other people uncomfortable? Of course there are. And that would maybe have high disapproval from other individuals? Of course there are.  ¶   But we also have to look at the reality of what the outcomes are for people who seek abortions and are unable to get them. And there are real, serious consequences there, as well, that should be considered. These patients are more likely to be the victims of domestic violence. They’re more likely to be evicted. They’re more likely to not be able to afford basic needs for their homes. Their living children are less likely to be developing normally. They’re more likely to have developmental delays.  ¶   There are so many consequences that can happen when someone is unable to make a decision for themselves. And I think that we have to allow people to make those decisions, because it usually is the right decision for them.  ¶   The vast majority of patients feel good and confident about the decision that they made. And I think that we have to allow them to do that.” (Arizona state senator Eva Burch, n. pag.)

But the religious persecution of U.S. citizens continues. Rather than accommodating “the free exercise of religion, according to the dictates of conscience” (Article 16 of A Declaration of Rights Made by the Representatives of the Good People of Virginia, Assembled in Full and Free Convention; adopted 12 June 1776), state legislators and jurists are acting to prohibit the free exercise of popular IVF medical technology, in keeping with doctrinaire fetal personhood laws establishing postmodern sectarian beliefs that life begins at conception and that the destruction of embryos during routine IVF is murder. See, for example, “‘License to Kill’: Anti-Abortion Groups Rage Against the GOP / Some groups are running ads against longstanding GOP allies that use the same graphic imagery — blood, babies and scalpels — they have long deployed to oppose Democrats and the abortion-rights movement” by Megan Messerly and Alice Miranda Ollstein (POLITICO, 3/12/2024). This struggle is about more than just GOP politicians “caving to political pressure” in an election year. It’s about one group of zealous sectarians imposing their particular “pro-life” religious beliefs on the rest of us. “Kellyanne Conway, Trump’s former senior counselor and campaign manager, told Congressional Republicans in December [2023] that 86 percent of respondents in a poll conducted by her firm KA Consulting, supported access to IVF. IVF had 78 percent support among self-identified ‘pro-life advocates’ and 83 percent among Evangelical Christians. One in 6 people will struggle with infertility in their lifetime, according to the National Infertility Association.” (“Alabama Said Frozen Embryos Are Kids: The GOP Isn’t Sure What to Do About It. / IVF — and specifically how to handle unused, frozen embryos — was rarely, if ever, discussed outside of the rightmost fringes of anti-abortion and religious circles” by Megan Messerly; POLITICO, 2/23/2024)

Institutionalizing what a majority of us believe to be “false opinions against the Scriptures” — “an error about some Article of Christian Faith” “contrary to the evidence and cleare truth of holy Scripture” — is exactly the kind of religious establishment rejected by our 18th-century founders. False opinions which are “stoutly and obstinately maintained” by some, but not “soundlie and generally held by the holy Catholike Church of God in Earth” — by which the Protestant author of The Christian Dictionarie meant the universe of worshippers, not the Roman Catholic church, which he castigated as “the great Whore” engaged in “Spirituall Witch-craft, whereby Papists bewitched, both Kinges and people, that they should bee deceived with such grosse trumpery, and dote upon such a foule Strumpet as Rome is” — are heretical; and so is manipulating our legal and political systems to prevent the majority from deciding the matter according to individual “Liberty of Conscience.” According to Julie F. Kay, “they don’t have the majority of Americans who want to ban abortion rights. So they’re doing what they can through conservative courts, through judicial maneuvers, and through messing with ballot initiatives to really take away the rights that people want.” (interviewed in the PBS News Weekend segment, “The Role of Fetal Personhood in the Anti-Abortion Movement and Legislation”; aired 3/10/2024)

This is not righteous governance “in the thinges of this life” or “in the thinges of God” (Thomas Wilson, A Christian Dictionarie, in 4 parts, 1612, s.v. Governor, 1.204).

I would add that I am not the only one to remark that “There is a widespread and nuanced theological debate about the beginning of life in the history of Christianity. The idea that life begins at conception is far from a universally agreed upon matter of historical Christian doctrine. When viewed in the long history of the Christian tradition, it is actually a minority opinion.” (Bradley Onishi, n. pag.)

Chief Justice Tom Parker’s opinion in the case, which draws on the Bible, Christian manifestos, theologians such as St. Augustine and Thomas Aquinas and the Reformer John Calvin, is an openly theological document. Parker argues that since life starts at conception, humans, especially lawmakers and judges, are called to implement policies and make decisions that will protect the sanctity of human life, whether in utero or outside it.
     So it’s easy to think that the premise that life begins at conception is a timeless theological component of Christian belief. But it’s not.
     The idea that life begins at conception is neither a unanimous belief in the history of Christianity, nor a classic American Protestant doctrine. When Parker writes about protecting the sanctity of life from the moment of conception, he is not carrying on a longstanding Protestant theological tradition by basing his decision on stalwarts of American evangelicalism like Cotton Mather or John Wesley or Jonathan Edwards. Those Protestant forefathers were more likely to believe that abortion, while inadvisable, was not murder until the “quickening” of the child — when the mother feels it move — somewhere near 18 weeks of the pregnancy.
     Instead, Parker is repeating a political mantra concocted by Republican operatives in the late 20th century in a successful effort to create a conservative Catholic-Protestant voting bloc capable of taking over the GOP — and implementing their religious-political vision throughout the country.

(Bradley Onishi, “Why Christians — and Republicans — Should Reconsider the Premise that ‘Life Begins at Conception’: It’s not settled Christian theology, and it’s outliving its political utility”; POLITICO, 3/21/2024, n. pag.)

Onishi also notices a historical linkage between the religious right’s sectarian position that life begins at conception and structures of patriarchy under threat “by changing sexual mores and the role of women.”

When it came to respectability politics, what the leaders of the Religious Right understood is that reducing abortion to murder by claiming that life begins at conception would provide them with an almost unassailable high ground in debates not just about reproductive rights, but also women’s independence, family structures and the stability of the American social order. It was also a way to form an unlikely but powerful alliance between conservative Protestants and the Catholics they had persecuted for so long.

(Bradley Onishi, “Why Christians — and Republicans — Should Reconsider the Premise that ‘Life Begins at Conception’: It’s not settled Christian theology, and it’s outliving its political utility”; POLITICO, 3/21/2024, n. pag.)

EDITED  As I have argued elsewhere, selective concerns about protecting the “sanctity of life,” abortion as murder, and women’s femme covert personhood (what Margaret Cavendish in 1662 referred to as “the Female Slavery”) have long intertwined. Patriarchal societies perpetuated by way of hereditary privilege were keen to control sexual relations, women’s sexuality in particular, in order to maintain all-important distinctions between legitimate and illegitimate children. As the governing bodies of church and state clamped down on women who conceived “bastards,” infanticide (the murder of an infant soon after its birth) became a noticeable problem, as did women’s possible duplicity concerning pregnancy. The law struggled to keep up, as is evident from Sir George Mackenzie’s summary of “How the murdering of Children is punished” in 17th-century Scotland. Mackenzie was personally opposed to elective abortions (the taking of a potential life), which he argued should be classed as a crime falling within the category of parricide (the act of killing one’s father, mother, or near relative). But he also acknowledged that abortum procurans was not murder, and “is arbitrarily punishable.” Indeed, the philosophicoreligious complexities concerning whether or not “the child was quick, quod fetus erat animatus” inferred “Ecclesiastick punishment” (for women and their physicians) rather than the customary death penalty which — even when a woman’s new-born child is found dead, with unresolved questions as to why (a still-birth? or infanticide?) — is too “severe” a punishment, according to Mackenzie, “if the woman openly acknowledged that she was with child, though none was present when she brought it forth.” Ultimately, the key legal issue for the Scottish state (vs. the established church) was bastardy.

[ “Title XIV.  Paricide.” ]

     VI.  By the Act 20. Parliament. 1. Ses. 1. Ch. 2. Beating or Cursing of Parents, is declared to have been punishable by the Law of God, with death: And therefore ordains, that whatsoever Son, or Daughter, above the age of Sixteen, and not distracted, shall beat or curse his Father or Mother, he shall die without mercy, but if they be within the age of Sixteen, and past pupilarity, they are to be punisht arbitrarily: From which it is to be observed, 1. That this Crime is meerly statutory, and therefore should not extend beyond the degrees of the act to grand-fathers, or grand-children, albeit appellatione filii & nepos comprehenditur in favorabilibus. 2. That arbitrary punishment is opposed to death, and so never can be extended in other acts to death. 3. That those who are not above the age of Pupilarity, are not capable to commit crimes, nor should be punished, for they are here accompted as distracted persons, and if they were punishable for any Crimes, it behoved to be for such as are against the Law of God.
     VII.  It is very easy, and too ordinary for women who bear Bastards, to murder them; And therefore to obviat this, the Law presumes so far, a woman who has born a bastard, and has conceal’d her being with child, to be guilty of Paricide, if the child be found dead, that it punishes her by some extraordinary punishment, (but not by death) except she can prove that the child was born dead: Thus it was decided in Savoy. 1595 vid. Cod. fab. de his qui parent occid. Def. 11. And with us Lawson, and Ramsey, were both Scourged, annis 1661. and 1662. even though they were assoylzied from the Murder: But I think that this were severe, if the woman openly acknowledged that she was with child, though none was present when she brought it forth. And in all such cases women are admitted to be witnesses.
     The taking potions also, to make one part with child, abortum procurans, should be a species of Paricide, in my opinion, since she thus endeavours to kill her own child: and by the Civil Law, it was punisht with death. L. Cicero. ff. de paenis. And though the Doctors [theologians] distinguish here, betwixt the using such means after the child is quick, or before it, making it capitall in the one case, but not in the other; yet they presume that the child was quick, quod fetus erat animatus, and that in odium delinquentis, and burden the delinquent to prove the contrair, Gomes: de delict cap. 3. num. 32. asserts that this is presumed not to inferr death, but Ecclesiastick punishment; and since to prove the contrair, seems to me, impossible, I encline to Gomesius, his opinion: but yet the using such means, even before the birth be quick, is arbitrarily punishable, as is even the using means to hinder conception. Marsil: ad l. si mulierem ff. de. sicar. And in these cases, both the Physicians who administrats the cure, and the woman who takes, are equally punishable, Marsil. ibid.

(Sir George Mackenzie, The Laws and Customes of Scotland, in Matters Criminal, 1678, 155–157)

NEW  The legal distinction in Scotland and elsewhere betweeen the taking of a potential life (i.e., “a thing in Posse, or which may be”) — which Mackenzie notes here “is arbitrarily punishable” — vs. the taking of an actual life — including “a Childe ... After he is born” (i.e., “in Esse, or Actual being”), which was punished by giving a life for a life (the murderer “put to death”) — was rooted in Mosaic law, specifying proportional punishments:

     21  And thine eye shal not pittie, but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot.

(Deuteronomy 19:21, as rendered in the King James Authorized Version of The Holy Bible, 1st edn., 1611)

     22  If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischiefe follow, he shalbe surely punished, according as the womans husband will lay upon him, and hee shall pay as the Judges determine.
     23  And if any mischiefe follow, then thou shalt give life for life,
     24  Eye for eye, tooth for tooth, hand for hand, foote for foote,
     25  Burning for burning, wound for wound, stripe for stripe.

(Exodus 21:22–25, as rendered in the King James Authorized Version of The Holy Bible, 1st edn., 1611)

NEW  Only when “mischiefe [death] follow” to the woman herself, “thou shalt give life for life.” Exodus 21:22–23 explicitly states that a pregnancy (“fruit” of the womb) does not equate to the life of an actual woman or man, because the death of the one does not require the death of the perpetrator. Sectarians who argue in 2024 that “unborn human life is sacred” and entitled to the same protections as a human adult or child “in Esse, or Actual being” are thus constructing false equivalencies, expressly rejected by Scripture, and by Anglo-American legal traditions rooted in that Scripture. From Scripture derives the long tradition in the West of viewing abortion as a minor infraction — “the crime amounted to little more than that of plucking unripe fruit from the tree” (G. L. Scott, ed., A Supplement to Mr. Chambers’s Cyclopædia, 2 vols., 1753, s.v. Abortion).

NEW  Those making the heretical argument that “the Constitution should be interpreted in line with Scripture — and that fetal personhood was in line with God’s law” (Mary Ziegler, “The Endgame in the Battle Over Abortion: The Arc of the Fetal Personhood Movement Signals Where Republicans May Be Headed,” n. pag.) also claim that The Fourteenth Amendment “guarantees equal protection to all embryos from the moment of conception” (Ian Ward, “The Group Behind Dobbs Does Not Want to Talk About What Comes Next: We sat down with Kristen Waggoner to talk about the anti-abortion legal group’s next targets,” n. pag.). Here we have yet another anachronistic and sectarian interpretation of our founding texts.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(Section 1 of the 14th Amendment; for further discussion of this section’s Equal Protection Clause, click/tap here; and for further discussion of this section’s Due Process Clause, click/tap here)

NEW  This language is not, nor was it intended to be, a federal constitutional prohibition on abortion. Again, according to our founding legal and Christian traditions, a fetus is a potential life, not an actual life, and as such, the fetus is not a person entitled to equal protection of the laws, “irrespective of the pregnant mother’s competing interests” (Kimberly Wehle, “The Little-Remembered Supreme Court Precedent That Could Protect IVF — and Abortion: A half-century before Roe v. Wade, the Supreme Court ruled that family life is off limits from government interference. Could that case provide a way to protect both IVF and abortion?,” n. pag.). Wehle’s article is especially interesting since it delves into the Fourteenth Amendment’s Due Process Clause, at the heart of a 1923 Supreme Court case (Meyer v. Nebraska) which provides “a precedent that could shift the terms of the IVF-versus-abortion debate away from the line of reasoning enshrined in Roe v. Wade to a new one that carves out family life as existing beyond the reach of government interference.” In Meyer v. Nebraska, the Supreme Court ruled “that ‘substantive due process,’ which later gave rise to constitutionally protected reproductive rights, precludes states from interfering in certain categories of decisions that belong to families and parents.” (Kimberly Wehle, 3/27/2024, n. pag.) This line of reasoning has nothing to do with the heretical fetal personhood claims with which anti-abortion activists plan to thwart the popular will in Florida; see, for example, “Anti-Abortion Groups Eye Challenge If Florida Voters Approve Ballot Measure: The fight over abortion likely won’t end in November” by Arek Sarkissian (POLITICO, 4/11/2024), in which Sarkissian reports: “Staver said that the April 1 Florida Supreme Court opinion opened the door for anti-abortion groups to use a personhood argument since a provision in the Declaration of Rights, found in the state Constitution, [guarantees] rights for ‘all natural persons.’” Whether or not the precedent set by Meyer v. Nebraska supersedes legal maneuvering over fetal personhood at the state level is a constitutional matter way beyond my expertise!

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East New Jersey’s 1686 and 1694 public-carry regulations

S O R R Y,  but this section is still under construction.

17th-century head-piece showing six boys with farm tools, by Wenceslaus Hollar

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Anglo-America’s historical tradition of domestic violence weapons bans

Opening quotation markPlato defineth it, to bee no injustice, to take a sword out of the hand of a mad man.Closing quotation mark

— A True Declaration of the Estate of the Colonie in Virginia, with a Confutation of such Scandalous Reports as Have Tended to the Disgrace of so Worthy an Enterprise. Published by Advise and Direction of the Councell of Virginia, London, 1610, p. 12

S O R R Y,  but this section is still under construction.

17th-century head-piece showing six boys with farm tools, by Wenceslaus Hollar

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In the meantime, some of the neglected historical analogues which will be discussed in this section are introduced in a related sidebar entry.

P R E F A C E

A quick summary of what’s coming, and why:

On 11/7/2023, the Supreme Court of the United States heard arguments in another Second Amendment lawsuit known as United States v. Rahimi, 22-915, which concerns the constitutionality of a federal law that disarms domestic abusers. The case before the Supreme Court defends the 1994 federal law prohibiting persons subject to domestic violence restraining orders from having guns from a legal challenge by Zackey Rahimi, who was earlier involved in five shootings over two months in and around Arlington, Texas:

When police identified Rahimi as a suspect in the shootings and showed up at his home with a search warrant, Rahimi admitted both to having guns in the house and being subject to a domestic violence restraining order that prohibited gun possession.

(“A Domestic Violence Survivor Wants the Supreme Court to Uphold a Gun Control Law” by Mark Sherman and Lindsay Whitehurst, Associated Press; posted to PBS NewsHour website, 11/6/2023, n. pag.)

Rahimi contends that the 1994 federal ban on gun possession by persons under domestic violence restraining orders violates his constitutional right to bear arms under the Second Amendment. The Fifth Circuit Court of Appeals agreed with this anachronistic interpretation of the Second Amendment, and threw out Rahimi’s guilty plea and prison sentence, prompting the federal government to appeal the case to the Supreme Court.

During oral arguments on 11/7/2023, Rahimi’s lawyers asserted that the federal ban in question is without precedent:

Matthew Wright, the federal public defender representing Rahimi, said the absence of early laws explicitly barring gun ownership from domestic abusers meant that the current ban cannot stand.

(“Supreme Court Looks Poised to Uphold Ban on Guns for Accused Domestic Abusers: Several key conservative justices seemed unlikely to strike down a federal law that disarms people under domestic violence restraining orders” by Josh Gerstein; POLITICO, 11/7/2023, n. pag.)

This argument that “there’s nothing in history and tradition like this federal ban” (as summarized by Marcia Coyle) is simply not true.

As the above quote from an official publication on Virginia (printed at London, in 1610) makes clear, disarming “mad” (crazed, irrational, angry, etc.) individuals is part of a millennia-old legal tradition dating back to Solon’s Laws (6th century BCE), and as I have already established in an appendix to this Web page, is a founding principle of Western civilization.

It should surprise no one that Anglo-America’s historical tradition of gun regulation continued this ancient policy. For example, this founding Greek principle, adapted for 17th-century frontier realities, is exemplified in the Maryland statute, enacted in 1658, granting an individual “person” the privilege of bearing arms, “unlesse such person be proved to beare armes to an Hostile intent, & contrary to the usuall & allowable customs of the Country for each mans defence,” at which point said person could “be disarmed or dispoyled in his armes or ammunic[i]on.” If this 1658 statute is not a “close analogue” (Marcia Coyle, n. pag.) to the 1994 federal ban being challenged in Rahimi, I don’t know what is!

Too much of recent historical study — including by an activist and ideological SCOTUS, poised to overturn established liberal jurisprudence — constitutes

the all-too-fashionable method of thinking up a bright idea and rummaging around for enough evidence to make it plausible.

(“Preface: David Beers Quinn,” in The Westward Enterprise: English Activities in Ireland, the Atlantic, and America 1480–1650, ed. K. R. Andrews, N. P. Canny, and P. E. H. Hair, viii)

Cherry-picking historical analogues which comport with a preconceived, ideological understanding of the past — while ignoring or dismissing historical analogues which undermine the conservative pursuit of a postliberal jurisprudence — is not really doing history ... certainly not the kind of “high-quality and significant” historical research modeled by the likes of D. B. Quinn, long known for

applying all the technical resources of research to clarify existing knowledge and supplement it with new, producing thereby a deeper and ultimately truer understanding of the past.

(“Preface: David Beers Quinn,” in The Westward Enterprise: English Activities in Ireland, the Atlantic, and America 1480–1650, ed. K. R. Andrews, N. P. Canny, and P. E. H. Hair, viii)

A true “originalist” (as some of our conservative justices claim to be) would engage with the full historical

INTENDMENT OF LAW, the Understanding, Intention, and true Meaning of the Law. The Judges ought to judge according to the common Intendment of the Law. Coke.

(Ephraim Chambers, Cyclopaedia, 2 vols., 1728, s.v. Intendment of Law, 2.395)

and the

COMMON Intendment, in Law, the common Understanding, Meaning, or Construction of any thing; without straining it to any foreign, remote, or particular Sense.

(E. Chambers, Cyclopaedia, 2 vols., 1728, s.v. Common, 1.275)

EDITED  Rather than adhering to such time-honored judicial principles, today’s ideological originalists are “straining” the “common Intendment of the Law” beyond recognition, as in the anachronistic reinterpretation of The Second Amendment which upends centuries of English common law concerning armigerous entitlements. This willful misreading of founding texts comprising “the Nation’s historical tradition of firearm regulation” couldn’t be clearer than in the court’s selective omission of an essay in Sir George Mackenzie’s legal treatise establishing that “Hagbuts, Pistols, and other Fire-works” were traditionally deemed “unlawful Weapons” under both the common law and civil law transplanted to Scottish-America: indeed, “Pistols, were forbidden, and the bearers punished, albeit no prejudice followed,” according to Mackenzie. Click/tap here to open a second-window aside with the excerpt from Mackenzie’s Laws and Customes of Scotland, in Matters Criminal (Edinburgh, 1678) evidencing that “the carrying of such Arms was repute publick violence, though no prejudice was done.” Punishment for the crime of bearing firearms in public ranged from “the prohibit Arms were confiscat” to “amputation of the right hand” and/or “confiscation of their moveables, or syning and imprisonment” and/or “banished the Realm during his lifetime.”

EDITED  Furthermore, there is an entire tradition of English common law, plus “Statutes and Customs of the Realm,” focused on domestic violence, which dates back to Anglo-Saxon times (c. 5th-century Britain), and is rich with historical analogues relevant to United States v. Rahimi. These early laws do not deploy 21st-century legal jargon to “explicitly” bar gun ownership by domestic abusers, but their “common intendment” (analogous to that in the 1994 federal law disarming domestic abusers) is clear. On what grounds, then, do self-professed originalists decide to ignore this historical body of law, rather than grappling with the timeless legal concepts involved, as well as recent shifts in sociopolitical values? Since the 17th century, the legal community has acknowledged that there is sometimes “a diversity between the ancient and these modern times, in this Point of Law and Government” (Thomas Blount, Nomo-Lexikon: A Law-Dictionary, 1670, s.v. Deciners, n. pag.). Understanding these points of similarity and difference is crucial when reimagining “the Publick Good” in an evolving multicultural republic.

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facsimile of page printed in 1799, with the original text of the Second Amendment

^  Original printed text (1799) of The Second Amendment (adopted 15 December 1791; here “Article the Second”) to the U.S. Constitution (drafted 1787, ratified 1788). As printed in The Laws of Maryland ... In Two Volumes. Revised and Collected, under the Authority of the [Maryland State] Legislature, by William Kilty, Attorney at Law (Annapolis, 1799), vol. 1, n. pag.
     Kilty notes that his text of “The constitution of the general government [U.S. Constitution], and the amendments, are copied from those published during the year seventeen hundred and ninety-nine by order of the house of representatives.” (William Kilty, Introduction, The Laws of Maryland ... in Two Volumes, 1799–1800, 1.[n. pag.]) So this was the second publication of the text of the Second Amendment in 1799, under the imprimatur of the U.S. House of Representatives.
     This authoritative 18th-century printing of the Second Amendment has only one comma, and reads: “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.” (Second Amendment to the United States Constitution; as printed in The Laws of Maryland ... in Two Volumes, ed. by William Kilty, 1799, 1.[n. pag.])
     Kilty describes himself on the title-page of this seminal two-volume work as an “Attorney at Law”:

facsimile of title-page to vol. 1 of Kilty's _The Laws of Maryland ... in Two Volumes_, printed at Annapolis in 1799

     The law was Kilty’s second career. Born and raised in London, this English immigrant served “in Maryland’s Fourth Regiment as a surgeon’s mate from April 1778 to 1780 and as a surgeon from 1781 to 1783. On 16 August 1780 he was taken prisoner at the Battle of Camden in South Carolina. During his captivity, Kilty returned to Annapolis, where he was forced to stay for the duration of the war. A strident patriot, he remained in the army for nearly two years beyond Britain’s surrender, and in May 1783 he became a founding member of the Maryland Society of the Cincinnati.” (ANB entry for “Kilty, William (1757–1821), jurist and army surgeon,” by Kevin R. Chaney, n. pag.)
     Kilty became a lawyer following his discharge from the army, and while he never held elected office, his interest in republican government led to various appointments: “in April 1789 [Kilty] was appointed by the Maryland House of Delegates to act as an agent of the state in the purchase and sale of British property seized during and after the war”; and “In 1798 he was appointed by the [Maryland] General Assembly to compile the statutes of the state.” “In 1800 Kilty settled in Washington, D.C. After John Adams enlarged the court system through the Judiciary Act of 1801, Kilty, by default, became one of the president’s ‘midnight appointments.’ In accordance with the act, Adams created the Circuit Court for the District of Columbia, staffing the court with Federalist jurists and appointing former Supreme Court justice Thomas Johnson to the chief justiceship. Johnson declined the appointment, but by the time Adams learned of his nominee’s refusal, it was too late for the former president to appoint another. In Johnson’s place, Thomas Jefferson appointed Kilty on 6 January 1802, a position he held until 25 January 1806, when he accepted an appointment as chancellor of Maryland. He held this office until his death.” (Kevin R. Chaney, n. pag.)
     His grasp of both federal and state law was authoritative. “Kilty devoted his remaining years solely to matters of chancery. As a federal judge, he enjoyed a reputation as an erudite, industrious, and astute jurist, and he was equally esteemed in his office as chancellor. From the bench in Annapolis, he appears to have been as accessible as he had been during his years of practice, responding to regular requests from acquaintances for legal advice.  ¶   Kilty made his name as a legal scholar, most notably for his Laws of Maryland, but his principal contribution to society in general, and jurisprudence in particular, was a lifetime of service at the bar. Considered honest, upright, and enlightened by his contemporaries, he labored in defense of American liberties from the Revolution through the War of 1812. A broadly educated, capable, and fair-minded jurist, Kilty was a man highly respected both in his professional and personal lives. His death, lamented one eulogist, ‘has deprived Maryland of the only person that exactly knew what is the constitution of the state!’” (Kevin R. Chaney, n. pag.)
     Kilty’s influential printed text of the Constitution (including the Bill of Rights) was found in prominent mid-Atlantic law offices, and had considerable reach at the turn of the 18th century. The title-page to vol. 1 of the copy of Kilty’s Laws reproduced above was the property of “Wm. TAYLOE SNYDER, ATTORNEY-AT-LAW, WASHINGTON, D.C.” (see office stamps in the upper left and right margins, and handwriting at bottom right). It was also owned c.1800 by “James Hollyday” and c.1834, by “R. C. Hollyday” (see handwriting at top of page).
     So there is nothing more authoritative than Kilty’s printed text when it comes to establishing “original intent” and “the original public meaning” of the Second Amendment, with its single comma limiting the people’s right to keep and bear arms to a well regulated militia. To 21st-century USers intoxicated by the rhetoric of absolute individual gun rights, the original one-comma Second Amendment of 1799 will signify a diminution of liberties. But to 18th-century folk, subject to private militias in the control of royalty and the nobility and coporate elites (in early Virginia, the Virginia Company was vested by the king with control over the militia), instituting a well regulated militia under government of the people, by the people, for the people was an empowering concept.
     Some scholars have suggested that The Second Amendment was prefigured in Article 13 of revolutionary Virginia’s Declaration of Rights (1776), the text of which reads in full:

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.

(Article 13 of Virginia’s seminal A Declaration of Rights Made by the Representatives of the Good People of Virginia, Assembled in Full and Free Convention; introduced 6 May 1776, adopted 12 June 1776)

     But Mabel Hill connects Article 13 of Virginia’s Declaration of Rights to Art. I, § 8 (16) of the federal constitution instead. (Mabel Hill, Liberty Documents with Contemporary Exposition and Critical Comments Drawn from Various Writers, new edn., 1907, 168) In Kilty’s late-18th-century version of the U.S. Constitution, paragraph 16 of Section 8 (Article I) was numbered paragraph 15, and reads:

SEC. 8. The congress shall have power ...
     [¶ 9] To constitute tribunals inferior to the supreme court; to define and punish piracies and felonies committed on the high seas, and offences against the law of nations;
     [¶ 10] To declare war, grant letters of marque and reprisal, and make rules concerning captures on land or water;
     [¶ 11] To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
     [¶ 12] To provide and maintain a navy;
     [¶ 13] To make rules for the government and regulation of the land and naval forces;
     [¶ 14] To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
     [¶ 15] To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress; ....

(Art. I, § 8 (9–15) of the Constitution for the United States of America, in The Laws of Maryland ... in Two Volumes, by William Kilty, 1799, 1.[Constitution(3of7)])

     I believe that the Second and Third Amendments were distillations of Article 13 of Virginia’s Declaration of Rights (May–June 1776) along with Articles 25–29 of Maryland’s The Declaration of Rights (August–November 1776), which concluded the early-modern debate with republicans over the king’s prerogative to arm/disarm citizens and control the armed forces (as asserted by the then marquess of Newcastle in the late-1650s, “a Soveraign Command over” the militia “Is your Ma[jes]ties Undoubted prerogative”; click/tap here to open a second-window aside with the full text of William Cavendish’s “For the Militia,” Section 1 of his Letter to Charles II). This debate was of great import, since “The final issue which had precipitated the Civil War in 1640 was the control of the armed forces of the Crown” (A. S. Turberville, A History of Welbeck Abbey and Its Owners, 2 vols., 1938, 1.172). To the Anglo-American revolutionaries tasked with preparing “a declaration and charter of rights, and a plan of government agreeable to such rights as will best maintain peace and good order, and most effectually secure happiness and liberty to the people of this state” (Proceedings of the Conventions of the Province of Maryland, Held at the City of Annapolis, in 1774, 1775, & 1776, 1836, 220; emphasis added), instituting a well regulated militia under government of the people, by the people, for the people filled that mandate:

25.  That a well regulated militia is the proper and natural defence of a free government.
26.  That standing armies are dangerous to liberty, and ought not to be raised or kept up without consent of the legislature.
27.  That in all cases and at all times the military ought to be under strict subordination to, and control of, the civil power.
28.  That no soldier ought to be quartered in any house in time of peace without the consent of the owner, and in time of war in such manner only as the legislature shall direct.
29.  That no person except regular soldiers, mariners and marines, in the service of this state, or militia when in actual service, ought in any case to be subject to, or punishable by, martial law.

(Articles 25–29 of Maryland’s seminal Declaration of Rights; introduced 27 August 1776, adopted “by the delegates of Maryland in free and full convention assembled” 3 November 1776)

As printed in William Kilty, The Laws of Maryland ... in Two Volumes, 1799–1800, 1.c2r, and pictured below:

facsimile of Maryland's Declaration of Rights (1774), p. 2 of 3, as printed in vol. 1 of William Kilty's _The Laws of Maryland ... in Two Volumes_ (Annapolis, 1799)

     It is notable that neither state constitution foreshadows the Second Amendment’s language concerning the people’s right “to keep and bear arms.” Given the fuller context of Virginia’s and Maryland’s Declaration of Rights, such language wasn’t needed. Subsequent bill-of-rights language appropriating the king’s prerogative “to keep and bear arms” notably derives from heraldry, which historically had restricted armigerous entitlements — bearing heraldic arms and carrying weapons — to select individuals, families & institutions, as regulated by the state.
     As for the multitude’s right “to keep and bear arms,” there was no such right — only an obligation (“duty”) to keep and bear arms in service of king and country. The various militia acts reenacted by Virginia’s legislature throughout the 17th and 18th centuries stipulate that the multitude bear arms in “the king’s service,” for “the defence of this his majesties country” (revised to “her majestie’s service, to be ready on all occasions for the defence and preservation of this her colony and dominion” during Queen Anne’s reign) “in case of a rebellion or invasion.”
     Once Virginia enacted its first militia law on 5 March 1623–4, the arming and disarming of Anglo-American settlers was handled via statute and executive order, with Virginia’s government responding in real time to evolving exigent circumstance. After the massacre of 22 March 1622, thus initiating the First Indian War (1622–1632), the Virginia legislature required that Anglo-American settlers be armed at all times (e.g., “That men go not to worke in the ground without their arms (and a centinell upon them.”)) and that they stockpile (not waste in revelries) ammunition (e.g., “That the commander of every plantation take care that there be sufficient of powder and amunition within the plantation under his command and their pieces fixt and their arms compleate.”; “That no commander of any plantation do either himselfe or suffer others to spend powder unnecessarily in drinking or entertainments, &c.”). Alarmed that at least a third of the men able to bear arms were unprovided through private means, the governor and council of Virginia wrote to London, reporting on the Great Massacre of 1622 — which left “above three hundred men, women, and children” dead, plus “spoyled and slaine divers of our Cattell, and some moer of our people, and burnte most of the Howses” — and requesting a steady supply of arms:

Another thinge of noe lesse moment than the former ys [is] Armes and munitions of wch [which] there is heere at this tyme so great wante that at least a third pte [part] of men able to beare Armes are utterly unpuided [unprovided] thereof and without wch we cannot only not goe fourth to revenge us uppon our enemyes but shalbe even unable to defend ourselves at home. And therefore shall also desire yt [that] some speedie course be taken for the sendinge of a large quantitie thereof and yt a continual supplie may follow from tyme to tyme.

(Governor and Council in Virginia to Company in London, April 1622; transcribed in Edward D. Neill, History of the Virginia Company of London, with Letters to and from the First Colony Never Before Printed, 297)

Within two years, at its session convened on 5 March 1623–4, the Virginia legislature imposed a military draft, exempting only “the old planters that were here before or came in at the last coming of sir Thomas Gates” and “their posterity” from militia service. Subsequent to this, numerous legislative acts armed and disarmed Virginia’s inhabitants, relating to their wartime and peacetime militia duties.
     In July 1622, the Virginia Company (founder and backer of the Virginia colony) delivered to the Privy Council an itemized list of desired military equipment for the colony, including a grant of “certaine old cast Armes remayning in the Tower altogether unfitt, and of no use for moderne Service, [which] might nevertheles be serviceable against that naked people.” In September 1622 a warrant was issued for everything on their list except fifty “Murtheringe peeces” and 500 “Targetts & Bucklers.” That fall, the king (James I) “graciously condiscended” to send Virginia arms and munitions — including 1,000 “browne bills” or halberds, 700 calivers (a type of musket: the lightest portable firearm then in use except the pistol), 300 harquebuses, 100 brigandines, 400 shirts and coats of mail, 400 bows and sticks to be made into bows, 800 sheaves of arrows, 300 short pistol with fire locks, 2,000 iron “skulls” or helmets, and 40 “plate Coates” — instructing the colonial government to distribute the arms and supplies as they saw fit, while the nonexpendable items were to remain the property of the “generall Collony, as the beginning of a Publique Armorie.” (In return for such royal largesse, the Company suggested that Virginians send to England 60,000 “waight” of sassafras to be sold for the purchase of military supplies.)
     Also in 1622, the Virginia Company issued a broadsheet giving a Short Declaration: Wherein Is Contained a Particular of Such Necessaries, as Either Private Families or Single Persons Shall Have Cause to Furnish Themselves with, for their Better Support at their First Landing in Virginia, with a list of arms valued at £3 9s. 6d., noting that “this is the usuall proportion that the Virginia Company doe bestow upon their Tenants which they send.” According to this table of provisions, the total cost per emigrant (supplies, plus passage and freight charges) amounted to £20 (plus additional miscellaneous charges for “Nets, hookes, lines, and a tent ... as also some kine” as warranted by “the number of people” per shipment).

facsimile of Virginia Company broadside (London, 1622)

(Price estimate for emigrating to Virginia in 1622; broadsheet published by the Virginia Company of London, a joint-stock enterprise, which sponsored the first permanent Anglo-American settlement at Jamestown, founded 26 April 1607)

Click/tap here to view a larger digital facsimile (412KB GIF file) of the Virginia Company’s emigration pricing sheet, The Inconveniencies that Have Happened to Some Persons which Have Transported Themselves from England to Virginia; Without Provisions Necessary to Sustaine Themselves ... (London, 1622).

Included in the Company’s breakdown of necessary “Armes” for emigrants were:
          • “One Armour compleat, light” (at a cost of 17s.)
          • “One long Peece, five foot or five and a halfe, neere Musket bore” (£1 2s.)
          • “One sword” (5s.)
          • “One belt” (1s.)
          • “One bandaleere” (1s. 6d.)
          • “Twenty pound of powder” (18s.)
          • “Sixty pound of shot or lead, Pistoll and Goose shot” (5s.)
with a note that this list was “For one man, but if halfe of your men have armour it is sufficient so that all have Peeces and swords.” (The Inconveniencies that Have Happened to Some Persons which Have Transported Themselves from England to Virginia; Without Provisions Necessary to Sustaine Themselves ..., 1622, n. pag.)
     Edward Waterhouse, serving as secretary of the Virginia Company and principal spokesman for the colonists after the Powhatan Paramount Chiefdom’s insurrection on 22 March 1622, recorded that “In the last three yeares of 1619. 1620. and 1621. there hath beene provided and sent for VIRGINIA forty two Saile of ships, three thousand five hundred and seaventy men and women for Plantation, with requisite provisions, besides store of Cattell, and in those ships have beene above twelve hundred Mariners imployed." (E. Waterhouse, A Declaration of the State of the Colony and Affaires in Virginia, 1622, 6) But not all ships were properly provisioned, following the emigration pricing sheet of 1622. When the city of London sent “one hundred children from the superfluous multitude” of its subaltern poor to Virginia in 1621–22, it “granted £500 for their passage and outfit” (letter from Sir Edwin Sandys to one of the king’s secretaries, Sir Robert Naunton), which amounted to a meager £5 per emigrant, far short of the £20 per emigrant promoted in 1622 as “the usuall proportion that the Virginia Company doe bestow upon their Tenants which they send.” Human traffickers such as Owen Evans — who “had a pretended commission to press maidens to be sent to Virginia and the Bermudas, and received money thereby” and whose “undue proceedings bred such terror to the poor maidens that forty have fled from one parish to obscure places, and their parents do not know what has become of them” (letter from Sir Edward Hext, Justice of the Peace of Somersetshire, to the Privy Council) — were even less likely to follow the Company’s recommendations for provisioning emigrants. Small wonder, then, that there was a perpetual scarcity of arms and ammunition in 1620s Virginia.
     The building up of a public armory and regulated militia soon became a legislative priority (e.g., on 3 March 1631–2, the Virginia legislature passed Act LXII mandating that all ocean-going vessels pay tonnage duties “after the rate of one barrell of gunpowder containinge 100 lbs. and ten iron shott for ordinance, for every hundred tunns of burthen, to be for the use of the fort at Poynt Comfort”). But, as Captain John Smith foresaw, the incentives for arming oneself and volunteering in a well-regulated militia — able “to inforce the Salvages [savages] to leave their Country, or bring them in that feare and subjection that every man should follow their businesse securely” in a safe and peaceful colony — were just not there, and wouldn’t be for several decades. Most settlers in Virginia circa 1624 were unwilling to drop their own private pursuits to engage in a war while others remained at home to grow tobacco and corn. As such,

... halfe their times and labours are spent in watching and warding, onely to defend, but altogether unable to suppresse the Salvages, because every man now being for himselfe will be unwilling to be drawne from their particular labours, to be made as pack-horses for all the rest, without any certainty of some better reward and preferment then I can understand any there can or will yet give them.

(Captain John Smith, The Generall Historie of Virginia, New-England, and the Summer Isles, 1624, 152)

Smith offered to provide an effective fighting force for Virginia (a hundred soldiers and thirty sailors well supplied with food and ammunition, plus “a Barke of one hundred tunnes, and meanes to build sixe or seven Shalops” to transport his men wherever needed) which could serve as a “running Army ... ready upon any occasion against the Salvages, or any other for the defence of the Countrey, and to see all the English well armed, and instruct them their use.” The initial military expedition and garrison was to be financed by the king and by Virginia’s “Planters also according to their abilities,” but Smith anticipated that his militia would become self-sustaining eventually, bringing in new revenues from military expeditions to

... discover you more land unknowne ... and in that I have done somewhat for New-England as well as Virginia, so I would desire liberty and authority to make the best use I can of my best experiences, within the limits of those two Patents, and to bring them both in one Map, and the Countries betwixt them, giving alwaies that respect to the Governours and government, as an Englishmen doth in Scotland, or a Scotchman in England, or as the regiments in the Low-countries doe to the Governors of the Townes and Cities where they are billited, or in Garrison, where though they live with them, and are as their servants to defend them, yet not to be disposed on at their pleasure, but as the Prince and State doth command them, and for my owne paines in particular I aske not any thing but what I can produce from the proper labour of the Salvages.

(Captain John Smith, The Generall Historie of Virginia, New-England, and the Summer Isles, 1624, 152–153)

According to Smith, “the most that heard” his militia proposal “liked exceeding well of the motion, and some would have been very large Adventurers in it” despite the expense, “provided they might have halfe the pillage.” Once Smith made it clear that the spoils of war in 1620s Virginia were limited to “a little Corne” — “I would not give twenty pound for all the pillage is to be got amongst the Salvages in twenty yeeres” — the Virginia Company refused to invest, telling Smith “the charge would be too great; their stock was decayed, and they did thinke the Planters should doe that of themselves if I could finde meanes to effect it.” (Smith, Generall Historie, 153)
     He could not. Four years later there was still no well-regulated militia in Virginia. In a letter to Governor John Harvey and the council in Virginia, dated 6 August 1628, the Privy Council directed that every settler in Virginia was to provide himself with both offensive and defensive weapons within a year, or face punishment.

The council also appointed Robert Felgate to be a Muster Master in Virginia, a post he formerly had held in the Somers Islands; four time[s] a year or oftener if necessary he was to examine the “Armes, munition and furniture, of everie person in the Collonie” and to train and exercise the people in the use and order of arms, reporting to the governor and council on their proficiency.

(W. S. Powell, “Aftermath of the Massacre: The First Indian War, 1622–1632,” 72)

     The Privy Council’s punitive approach became the new militia policy. A decade later, the province of Virginia (now under Charles I’s rule), required Virginia’s multitude, with the notable exception of Black Virginians, to be armed, or pay a penalty: “ALL persons except negroes to be provided with arms and ammunition or be fined at pleasure of the Governor and Council.” (statute enacted at a grand assembly, convened 6 Jan. 1639) Two decades after this, at the end of the Interregnum, a new law was passed requiring every man to keep a gun & a certain quantity of powder and shot: “BEE it enacted that a provident supplie be made of gunn powder and shott to our owne people, and this strictly to bee lookt to by the officers of the militia, (vizt.) That every man able to beare armes have in his house a fixt gunn two pounds of powder and eight pound of shott at least which are to be provided by every man for his family before the last of March next, and whosoever shall faile of makeing such provision to be fined ffiftie pounds of tobacco to bee laied out by the county courts for a common stock of amunition for the county.” (statute enacted at a grand assembly, convened 7 March 1658–9) After the Restoration, all laws in force under the prior regime, “which might keep in memory [Virginians’] forced deviation from his majesties obedience,” were repealed and expunged, and new laws passed, including Act CXX: “BEE it enacted that a provident supply be made of guns, powder and shott to our owne people, and this strictly to be looked to by the officers of the militia (vizt.) that every man able to beare armes have in his house a fixed gun, two pound of powder and eight pound of shot at least, which are to be provided by every man for his family before the last of March next; and whosoever shall fayle in making such provision to be fined ffifty pounds of tobacco to be laid out by the county courts for a common stock of amunition for the county, the enquiry referred to the grand jury.” (statute enacted at a grand assembly, convened 23 March 1661–2)
     At this same session convened 23 March 1661–2, another statute (Act CXIX) — anticipating that “the common enemy the Indians, if opportunity serve, will suddenly invade this country and bring it to a totall subjection of the same” — prohibited all persons from “shooting of guns [...] att drinking or marriages (buryalls excepted),” because “the frequent shooting of guns in drinkings” interfered with the colony’s method of gunshot “allarmes,” used to alert settlers of Indian “plotts” of attack. (Drunken entertainments involving guns were also outlawed because they led to riotous behavior that disturbed the peace.) This law Against Shooteing at Drinkeings was first enacted in 1655, revised in 1656, and originally exempted recreational shooting at marriages as well as funerals. Similarly, Virginia law evolved from requiring “all men that are fittinge to beare armes” to bring their firearms to church (1631–2) to prohibiting shooting on the Sabbath a decade later: “Be it further enacted and confirmed for the better observation of the Saboth and for the restraint of divers abuses committed in the collony by unlawfall shooting on the Sabbath day as aforesaid, unles it shall be for the safety of his or their plantations or corne fields or for defence against the Indians, he or they so offending shall forfeit for his or their first offence being thereof lawfully convicted, if he be a freeman the quantity of twenty pounds of tobacco, and if a servant to be punished at the discretion of his master, And if masters of any such servants be remisse and negligent in the punishing of his servant for the offence aforesaid he shall be liable to the forfeiture of twenty pounds of tobacco, being justly convicted for the same.” (Act XXXV, passed by the Virginia state legislature, 2 March 1642–3) An altered statute enforcing religious observation of the Sabbath day, and criminalizing “shootinge in gunns, or the Like, tendinge to the profanation of that day,” was reinstituted when the General Assembly overhauled Virginia’s written corpus juris in the Revisals of 1652 and 1658.
     By 1671, the limitations of Virginia’s privatized approach to provisioning a citizen militia were clear, impacting Virginia’s military force and readiness: “All our freemen are bound to be trained every month in their particular counties, which we suppose, and do not much mistake in the calculation, are near eight thousand horse: there are more, but it is too chargeable for poor people, as wee are, to exercise them.” As for military weapons, “There is not above thirty great and serviceable guns; this we yearly supply with powder and shot as far as our utmost abilities will permit us.” As for “what monies have been paid or appointed to be paid by his majesty, or levied within your government for and towards the buying of armes or making or maintaining of any ffortifications or castles, and how have the said monies been expended?”: “Besides those guns I [Governor Berkeley] mentioned, we never had any monies of his majesty towards the buying of ammunition or building of fforts. What monies can be spared out of the publick revenue, we yearly lay out in ammunition.” As for Virginia’s sorry state of fortifications, “There are five fforts in the country, two in James river and one in the three other rivers of York, Rappahannock and Potomeck; but God knows we have neither skill or ability to make or maintain them; for there is not, nor, as far as my enquiry can reach, ever was one ingenier [engineer] in the country, so that we are at continual charge to repair unskilfull and inartificial buildings of that nature.” “When I [Governor Berkeley] came into the country, I found one only ruinated ffort, with eight great guns, most unserviceable, and all dismounted but four, situated in a most unhealthy place, and where, if an enemy knew the soundings, he could keep out of the danger of the best guns in Europe. His majesty, in the time of the Dutch warr, sent us thirty great guns, most of which were lost in the ship that brought them. Before, or since this, we never had one great or small gun sent us, since my coming hither; nor, I believe, in twenty years before. All that have been sent by his sacred majesty, are still in the country, with a few more we lately bought.” (Sir William Berkeley, governor of Virginia, responding in 1671 to a questionnaire, dated 1670, submitted by the lords commissioners of foreign plantations)
     As we have seen, because guns and ammunition were expensive, statutes were enacted compelling those compelled to train with their local militia to keep and bear arms in working order, or be penalized if they did not comply. Men too poor to privately arm themselves were provisioned from the people’s supply of “public arms,” which guns they had to maintain in working order, and return to the people’s armory whenever they left off militia duties or moved away. Given the amount of debt found throughout the colonies, it became customary to take people’s arms (often their only possession of value) by way of payment, so laws had to be enacted protecting frontiersmen from being disarmed by anyone to whom they owed money. It was with this intent that Maryland legislators passed a law granting the multitude (persons) a conditional right to bear arms (for self-defense) in 1658:

[T]hat no person whatsoever within this Province by any Collour or suggestion be disarmed or dispoyled in his armes or ammunic[i]on & thereby consequently left to the Cruelty of the Indians unlesse such person be proved to beare armes to an Hostile intent, & contrary to the usuall & allowable customs of the Country for each mans defence.

(William Hand Brown et al., eds., The Archives of Maryland, 72 vols., 1883–1964, 1.370–371)

     Hence, even under the most dire situation of “invasions and insurrections” (as experienced by Maryland in the 1650s), Anglo-American “Persons, whether Free, or Servants” had no absolute, abstract or universal right to keep and bear arms.
     NOTA BENE  To reiterate: the Second Amendment revolutionized “the Nation’s historical tradition of firearm regulation” by shifting the (hereditary) royal prerogative concerning “a well regulated militia” from the monarch (and/or the Crown’s surrogates) to “the people” (the body politic in a republic). In Maryland, for example, armigerous entitlements (“the right ... to keep and bear arms”) associated with “a well regulated militia” were, from Maryland’s founding in 1632, limited to the proprietor. Lord Baltimore — not “the people” of Maryland, and most definitely not “the headlesse multitude” (phrasing from William Strachey, “A True Reportory of the Wracke, and Redemption of Sir Thomas Gates Knight; upon, and from the Ilands of the Bermudas: His Comming to Virginia, and the Estate of that Colonie Then, and After, under the Government of the Lord La Warre, July 15. 1610,” in Purchas his Pilgrimes in Five Bookes, by Samuel Purchas, 4 vols., 1625, 4.9.6.3.1749) — held the royal prerogative over the armed forces, including the power to make war & peace:

This Province of Mary-Land, his Majesty King Charles the First, Anno 1632, granted by Patent to the Right Honourable Caecilius Calvert Lord Baltemore, and to his Heirs and Assigns, and by that Patent created him, and them the true and absolute Lords, and Proprietors of the same (saving the Allegeance and Sovereign Dominion due to his Majesty, his Heirs and Successors;) likewise granting thereby to them all Royal Jurisdictions and Perogatives, both Military and Civil; as Power of enacting Laws, making of War and Peace, pardoning Offences, conferring of Honors, Coyning of Money, &c. and in acknowledgements thereof yielding and paying yearly to his Majesty his Heirs and Successors two Indian Arrows at Windsor Castle, on Easter Tuesday, together with the fifth part of all the Gold and Silver Ore that shall be there found.

(Robert Morden, Geography Rectified, or, A Description of the World, 2nd edn., rev. and enl., 1688, 564)

     As evidenced above, “British liberties” and the oft-cited “rights and privileges of Englishmen” never included armigerous entitlements, which were historically restricted to an elite segment of the population, trained in the use of weapons, which intertwined with militia duties.
     Contrary to popular opinion, the U.S. Constitution did not break with this longstanding tradition of rights and responsibilities enumerated in the common law, giving to the “headie, daring, and unruly multitude” a right to bear arms in 1791. Early constitutional scholars, such as Emlin McClain, recognized this continuity, observing that many “so-called rights” are “in reality duties and privileges imposed and granted for the public good and not for individual benefit” (Emlin McClain, Constitutional Law in the United States, revised edn., 1910 [rpt. 1916], 284).
     Having lost sight of the public good — “the general welfare” (Preamble to the U.S. Constitution) — in postmodern America, it is small wonder that so many of us are now vested in an individualist, revisionist reading of the Second Amendment that has no basis in the nation’s historical tradition of firearm regulation, prior to the 21st century.

facsimile of page printed in 1809, with the original text of the Second Amendment

^  Early printed text of the Second Amendment (originally Article IV) to the U.S. Constitution, entitled “Of the Militia; right to bear arms” (in marginalia at right). As printed in 1809 on p. 27 of The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619 (1st edn., 4 vols., 1809–1814, 1.27), edited by William Waller Hening (1767?–1828).
     Of note: Hening’s authoritative printing of the Second Amendment (Article IV) — published, only 17 years after its ratification by Virginia on 15 December 1791, in a reference work commissioned by the Virginia state legislature, and produced in collaboration with Thomas Jefferson, who shared with Hening his collection of 17th-century Virginia statutes — also has only one comma (“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.”).

facsimile of page printed in 1905, giving the text of the Second Amendment

^  The Second Amendment (Article II), as printed in the early 20th century on p. 417 of Constitutional Law in the United States (1st edn., 1905; rev. 2nd edn., 1910), by Emlin McClain (1851–1915).
     Of note: McClain’s printed version of the Second Amendment (Article II) — published over 100 years after its ratification by the states in 1791 — introduces two more commas to the text, resulting in 3 commas total (“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.”). Unfortunately, the added arbitrary commas have obscured the original meaning of the amendment for some postmodern readers.
     McClain’s own parsing of the amendment did not change, however, and the passage he used for textual analysis in Chapter 40 of his text on U.S. constitutional law for nonlaw students is the same one-comma clause printed by Hening in 1809 (“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”). See below for digital facsimile.
     There is a superfluity of commas in McClain’s printed version of the Third Amendment (Article III), also (“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”). (Emlin McClain, Constitutional Law in the United States, 1st edn., 1905, 417)
     Compare McClain’s use of four serial commas here with Hening’s more structured text, again printed in 1809, juxtaposing two commas and one semicolon: “No soldier shall in time of peace be quartered in any house, without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.” (The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, ed. W. W. Hening, 4 vols., 1st edn., 1809–1814, 1.28) Click/tap here to view a digital facsimile (110KB file) of p. 28, giving Hening’s 1809 printing of Amendments III (Article V) through VII (Article IX) to the U.S. Constitution.

facsimile of page printed in 1905, giving a variant Second Amendment

^  Variant of the Second Amendment, as printed in 1905 and 1910 on p. 311 of Constitutional Law in the United States (1st edn., 1905; rev. 2nd edn., 1910), by Emlin McClain (1851–1915).
     Of note: for his textual analysis of the Second Amendment in Chapter 40 of his text on U.S. constitutional law for nonlaw students, McClain alters the punctuation, here using only one comma, instead of the now usual three.
     McClain’s textual analysis of the hotly disputed Second Amendment reads in full: “The provision of the federal constitution that ‘A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed’ (Amend. II), and like provisions in state constitutions are evidently intended to guarantee the right of the people to form military organizations under lawful authority for a proper purpose. The federal guaranty would prevent any attempt on the part of Congress to render illegal the organization and discipline of a state militia, but such interference would be unconstitutional without this guaranty, for [...] the right of the state to maintain an organized militia is elsewhere recognized [U.S. Const. Art. I, § 8]. As an exercise of a civil right, the formation of military companies or bodies must depend for its lawfulness upon the state constitution and laws, and must be exercised in accordance with the law. Therefore, the state may prohibit the gathering of armed men for an unlawful purpose or in a manner likely to result in violation of law or in disorder and riot.  ¶   The state may also prohibit the carrying of arms by private individuals as an act imperilling the public peace and safety. In many states there are statutes making it a crime to carry concealed weapons, and such statutes are not regarded as unconstitutional.” (Emlin McClain, Constitutional Law in the United States, 1st edn., 1905, 311–312)
     The ease with which McClain moves between variant texts is requisite when working with historical documents, especially those issued both as scribal and print publications.
     Most importantly, as with Hening, McClain’s textual scholarship is authoritative.
     “An untiring scholar, McClain published A Treatise on the Criminal Law (2 vols., 1897) and contributed articles on diverse subjects such as law, legal history, and legal education to American Encyclopedia, Cyclopedia of Law and Procedure, Harvard Law Review, Yale Law Journal, Columbia Law Review, and other journals.” (Michael H. Hoffheimer, ANB entry for “McClain, Emlin (1851–1915), Judge and Legal Educator,” n. pag.)
     “McClain rose to prominence in the state bar with the publication of Annotated Statutes of Iowa (2 vols., 1880; supp. 1884; 2d ed., 1888; supp. 1892). The only consolidated compilation of the state laws since 1873 and the only annotated edition, this work was made an official source of state law by legislation enacted in 1882. He also published Iowa Digest (2 vols., 1887; supp. 1893, 1898, 1904), which summarized all reported state and federal cases from Iowa. Recognized as an authority on state law, he was selected by the Iowa Senate in 1894 to serve on the Code Commission, created to draft a comprehensive new code. With its adoption, McClain was retained to provide complete official annotations. Using his own annotated statutes as a model, he prepared official annotations for supplements in 1902, 1907, and 1913.” (M. H. Hoffheimer, n. pag.)
     “McClain was elected as a Republican to the Iowa Supreme Court and served as a justice from 1901 to 1906. He was reelected for 1907–1912 and served as chief justice for the years 1906 and 1912. His opinions were characterized by concise statement of legal issues, clear organization, and attention to judicial authority from other states.” (M. H. Hoffheimer, n. pag.)
     “McClain’s painstaking annotations and digests of Iowa law made the state’s growing body of cases and statutes accessible to practitioners. An energetic legal scholar and judge, he played a signal role in the movement to professionalize legal education. His high academic standards helped both the Iowa bar and the university rise to a position of national prominence in law that they have retained ever since. In his teaching and scholarship he helped assure the geographical spread of the case method in legal education.” (M. H. Hoffheimer, n. pag.)

facsimile of page printed at the turn of the 21st century, giving a postmodernized Second Amendment

^  Postmodernized Second Amendment (newly entitled “Right to bear arms”). As printed at the turn of the 21st century on p. 23 of the American Civil Liberties Union (ACLU) pocket version of The Constitution of the United States of America (n.p., n.d.).
     Of note: the postmodernized printed text of the Second Amendment (Amendment II) follows the three-comma version given on p. 417 of McClain’s Constitutional Law in the United States (“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.”), an arbitrary punctuation which has obscured the amendment’s original public meaning for some postmodern readers.
     The postmodern shift in meaning is clear in the accompanying change of title, from “Of the Militia; right to bear arms” (W. W. Hening, 1809, 1.27) to “Right to bear arms” (ACLU handbook, 23).

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