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First Published: 23 November 2019
Revised (substantive): 26 May 2023
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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.w.gif){kind=small}
— 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
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I N S U M M A R Y
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)
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. 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, seditious attitudes toward the people’s magistracy drew statutory condemnation. 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.
R I G H T I N G T H E H I S T O R I C A L R E C O R D
“the People” versus “the Multitude”
S O R R Y, but this section is still under construction.
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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.”
R I G H T I N G T H E H I S T O R I C A L R E C O R D
East New Jersey’s 1686 and 1694 public-carry regulations
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^ Early printed text (1799) of the Second Amendment (here “Article the Second”) to the U.S. Constitution — issued within 8 years after being adopted on 15 December 1791. 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”:
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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).
EDITED 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 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)])
EDITED 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:
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EDITED 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.)
EDITED 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.”
NEW 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.
NEW 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.)
NEW 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).
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(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.)
NEW 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.
NEW 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)
NEW 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)
NEW 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)
NEW 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) Another statute enforcing religious observation of the Sabbath day, and criminalizing “shooteing in gunns or the like tending to the prophanation of that day,” was enacted in March 1657–8.
NEW 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.
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^ 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.”).
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^ 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.
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^ 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.)
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^ 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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