The Potowmack Institute
Other history files in our archive:
John Kenneth Rowland,
unpublished PhD dissertation, Ohio State, 1978.
John Kenneth Rowland,
Appendix A, US v. Emerson,
"An Armed Community: The
Origins and the Meaning of the Right to Bear Arms,"
J. Am. Hist., 1984.
"The Second Amendment in Historical Context",
Constitutional Commentary, October, 1999.
Saul Cornell,"Commonplace or Anachronism,"
Constitutional Commentary, 1999.
Michael Bellesiles,"Suicide Pact:
New Readings of the Second Amendment,"
Constitutional Commentary, 1999.
John K. Mahon, History of the Militia and National Guard
(1983), Chapters 3, 4, and 5
Garry Wills, "To Keep and Bear Arms",
New York Review of Books, September 21, 1995.
Leon Friedman,"Conscription and the Constitution,"
Michigan Law Review, 1969.
THE SECOND AMENDMENT IN HISTORICAL CONTEXT
Constitutional Commentary, October, 1999
Professor of History, University of North Carolina,
© 1999 Constitutional Commentary, used with permission.
A reading of Saul Cornellís essay brings several
things to mind. First, there has been a torrential
outpouring of writings on Second Amendment issues for
quite some years. I initially became aware of this
development sometime in the mid-1980s, but I only
sensed that it was about to reach flood-tide
proportions with a 1989 issue, of the Dayton Law
Review. It would be interesting to know just how many
pieces in law reviews alone, to say nothing of books
and op-ed newspaper pieces, have appeared in the last
decade. Certainly part of the explanation for what has
taken place has to do with hotly debated gun control
issues. Even so, the reasons why passions run so high
among academics is itself puzzling, especially in view
of the fact that the United States Supreme Court has
handed down only three direct opinions on the Second
Amendment, the last one coming in 1939. Only the Third
Amendment, forbidding the billeting of soldiers in
private homes, has had less judicial attention than
the Second. In any event, it is easier to fathom the
motivations of the National Rifle Association and
Brady legislation supporters than it is the dozens of
those who reside in the halls of ivy. To further
complicate matters, one finds both liberals and
conservatives on each side of the debate.
Second, the vast preponderance of these writings have
been by members of the legal fraternity. Their
approach has on the whole been narrowly legalistic,
and they have borrowed very heavily from each other,
recycling the same body of information. That
information often refers to the generalizations and
conclusions of their lawyer colleagues at other
institutions. When they have gone to original sources,
as some surely have, they have drawn the great weight
of their argument from charters, constitutions, and
other formal parchments, as well as debates and
interpretations in the writings of the leading lights
of the Revolu-
264 CONSTITUTIONAL COMMENTARY [Vol. 16:263
tionary generation radicals and conservatives of
1776, Federalists and Anti-Federalists of the late
1780s, Hamiltonians and Jeffersonians of the Early
Republic, and jurists of the following century.
Perhaps none of the efforts of this Standard Model
school of scholarship has received as much national
attention as the special issue of the Tennessee Law
Review that appeared in 1995, generating responses in
such highly visible outlets as the New York Review of
Books and the Chronicle of Higher Education.
If one encounters disappointingly little difference of
opinion in this voluminous literature what is
surely now the Standard Modelís fundamental
testament we do occasionally see a fresh approach
from the lawyerly venue. One of the most provocative
and worthy of consideration and further research is
Carl T. Bogusís Hidden History of the Second
The author contends that influential Southerners
feared that a federalized militia might well leave
their region without adequate means to police the
slave community and might provide slaves with an
incentive to revolt. One reason, at least, for the
Second Amendment was to address those concerns: the
states would control their militias most of the time,
and they would retain their authority to provide arms
for their state militias if Congress failed to provide
them with sufficient weapons. "In effect, the Second
Amendment supplemented the slavery compromise made at
the Constitutional Convention in Philadelphia and
obliquely codified in other constitutional
If the pro-slavery motive is as powerful as Bogus
contends, it may make Standard Modelers a bit
uncomfortable and deprive them of some of the high
ground they have sought to occupy. Although Bogusís
thesis will doubtless be: controversial, it is timely
and valuable for two reasons: it will stimulate more
research on the subject, and it contextualizes the
question of origins and motivation by looking at the
social order at the time Congress passed the Bill of
Rights. Critics of the Standard Model approach will
assuredly go along with one assertion of Bogus, which
is that the evidence on the origins "of the Second
Amendment strongly supports the collective rights
Context, of course, is the major theme of Cornellís
essay, and it is the most important point he could
possibly make in
1999] HISTORICAL CONTEXT 265
urging us to get Second Amendment studies back on the
historical track. I myself attempted to do just that
in The Federalized Militia Debate: A Neglected
Aspect of Second Amendment Scholarship.
Militia discussions and debates in Congress during the
War of Independence, in the postwar Confederation
years, during the writing and ratification of the
Constitution, in the First Federal Congress, and into
the Jeffersonian period always revolved around issues
of militia control and organization or, to put it
in terms used in our present-day literature, involved
collective rights (not individual rights) and how they
should be implemented in legal and constitutional
terms. If people believed passionately in gun
ownership as an individual right, they rarely said so.
In fact, I put out a request to nearly a thousand
early American scholars on the Omohundro Institute of
Early History and Cultureís NET, askingí for citations
to speeches and writings mentioning specifically the
belief that individual gun ownership was or
should be a protected right in any of the great
charters of the period. The responses contained
nothing other than the handful of references I already
Cornell may well deliver the most devastating blow yet
to the Standard Modelersí view of the Founding era
because he successfully challenges them concerning
Pennsylvania, the state where one finds the most
evidence of claims for gun ownership as an individual
right, which was often linked with opposition to ever
accepting the Constitution without a bill of rights.
Here the Standard Modelers have often gone to the
fullest available sources, especially the Documentary
History of the Ratification of the Constitution. But
have they interpreted the evidence correctly? Cornell
demonstrates that they have not. Although the
Pennsylvania state constitution of 1776 declares that
"the people have a right to bear arms" both "for the
defense of themselves and the State," the
Revolutionary governmentís Test Acts, hardly limited
to the Loyalists, gave authorities wide latitude to
curtail liberties, including the confiscation of arms.
These Acts, which may have affected close to forty
percent of the population, remained on the books until
1789, stoutly defended by political elements that
would lead the Anti-Federalist forces. Indeed, at the
time of the Carlisle Riots and the Whiskey Rebellion
substantial voices from the elite ranks of
Anti-Federalism supported disarming their former
The whiskey re-
266 CONSTITUTIONAL COMMENTARY [Vol. 16:263
bels themselves did not justify taking up their
muskets on the basis of the Second Amendment "but
instead framed their actions in terms of a natural,
not a constitutional, right of revolution."
On gun ownership, Anti-Federalists were not cut from
the same cloth, a truism for other issues as well.
Cornell, the preeminent authority on Pennsylvania
Anti-Federalism, will not be easily dismissed.
Still another area of investigation needs additional
work, although Michael Bellesiles has already
contributed two pathbreaking articles.
The question he asks is what we learn in terms of
Second Amendment issues from looking at weapons
ownership and laws about guns during the colonial and
Revolutionary years. The subject is exceedingly
relevant since at least one Standard Modeler
contention is that, regardless of the slim evidence
for outright claims to gun ownership as an individual
right, that right is a part of our common law
tradition inherited from the Glorious Revolution of
1688 and the English Declaration of Rights that
followed it. The elaboration is as follows: the idea
was in the air on the western shores of the Atlantic
before the American Revolution. Moreover, some rights
that are so universal need not always be anchored in
charters or other legal documents. And it is simply
impossible to enumerate every right that people
believe they possess.
Although one cannot categorically say that this
commonlaw interpretation is wrong one cannot
prove or disprove anything without factual
information it is now easy to demonstrate that
American legislatures before the adoption of the
Constitution had established their own tradition of
firearms regulation. From the earliest days, as has
long been known, the assemblies created militias and
required citizensí to own guns in order to perform
militia service. But only now are we learning how much
legislation was needed. Countless Americans did not
1999] HISTORICAL CONTEXT 267
and many who possessed them turned out for militia
service with weapons so rusted or antiquated that they
were worthless. It took legislative efforts to arm
those who were to be a part of the militia and to
disarm those socially undesirable persons such as
Catholics, white servants, and Africans (both slaves
and free blacks) wha might somehow acquire weapons.
A young scholar whose work is still in progress
observes that when mid-eighteenth-century American
lawmaking bodies bought arms in England, they did not
seek weapons useful for sport or hunting for
private or individual employment outside military
service but rather standard military issues of
the day, such as the British army "Brown Bess"
equipped with bayonet.
Is it possible, then, that the Framers were most
interested in citizens, possessing military style
weapons, limited to military purposes, for employment
only during their militia service? And if so, what are
the ramifications for todayís gun regulation debates?
Colonial governments regulated various areas of life.
Given deep-seated beliefs about the corporate nature
of society and mercantile practices, provincial
lawmakers would have considered nineteenth-century
liberalism or laissez-faire notions unthinkable.
Hence, it is hardly surprising that fresh scholarship
reveals how extensively colonial legislatures
concerned themselves with the production, use, and
ownership of firearms. An iron law of political
behavior, if such exists, is that legislative bodies
do not voluntarily relinquish power; that, to the
contrary, they seek to increase it at every
opportunity. No better example is to be found than in
the story of the growing influence and authority of
the American representative assemblies in the half
century before the American Revolution growing
to the extent that they described themselves as little
parliaments and came to extend their jurisdiction into
matters not even claimed by the British House of
Therefore, it is beyond belief that during the
Revolution and later the state legislatures would have
renounced their right to control weapons in any area
of American life. James Madison and Thomas Jefferson
268 CONSTITUTIONAL COMMENTARY [Vol. 16:263
widely held view that the Revolutionary legislatures
interpreted their powers very broadly too broadly
at times even to the point of encroaching on the
authority of Congress under the Articles of
All this casts, light on why even the prominent
Pennsylvania Anti-Federalists in Cornellís essay had
no sympathy for the Carlisle and whiskey rebels, who,
without the approval of the state, took up arms and
engaged in violence. Cornellís study, along with my
own work and that ofCarl Bogus and Michael Bellesiles,
puts the federalized militia controversy at the time
of the ratification fight of 1787-1788 in context with
regard to the subsequent Second Amendment. The
AntiFederalistsí concern was with the states having to
share control of their militias with the federal
government and not to any degree yet
demonstrated with protecting gun rights of their
local citizens outside of their obligation to serve in
their respective statesí well-regulated militias.
1. Carl T. Bogus, The Hidden History of the Second
Amendment, 31 U.C. Davis L.
Rev. 311.408 (1998).
4. Don Higginbotham, The Federalized Militia
Debate: A Neglected Aspect of Sec. ond Amendment
Scholarship, 55 Wm. & Mary 0. 39.58 (1998).
5. Although she failed to show the full complexities
of Anti-Federalist thought, Cecelia M. Kenyon
some years ago pointed out that
within Anti-Federalism there was considerable
anti-democratic, even reactionary, thinking. Men of
Little Faith: The AntiFederalists on the Nature of
Representative Government, 12 Wm. & Mary 0. 3-43
6. Saul Cornell, Commonplace or Anachronism: The
Standard Model, the Second Amendment, and the Problem of History in Contemporary
Constitutional Theory, 16 Const. Comm. 221 (1999).
7. Michael A. Bellesiles, The Origins of Gun
Culture in the United States, 1760-
1865, 83 J. of Am. Hist. 425, 428-41 (1996) and
Gun Laws in Early America: The Regulation of
Firearms Ownership, 1607-1794, 16 L. & Hist. Rev.
8. It is contended that this "English influence on the
Second Amendment is the missing ingredient that has
hampered efforts to interpret its intent correctly."
Joyce Lee Malcolm, To Keep and Bear Arms: The
Origins of an Anglo-American Right xii (Harvard U.
9. John C. Davenport, The Second Amendment, Original
Intent, and Firearms Acquisition in Colonial America,
Unpublished Paper Given at the Omohundro Institute of
Early American History and Cultureís Annual Colonial
Conference, Boulder, Co. (June, 1996).
10. Leonard W. Labaree, Royal Government in
America. A Study of the British
Colonial System Before 1783 (Yale U. Press, 1930);
Jack P. Greene, The Quest for Power:
The Lower Houses of Assembly in the Southern Royal
Colonies 1689-1776 (U. of North
Carolina Press, 1963).
11. Madisonís now-classic criticisms appear in William
T. Hutchinson, et al., eds.,
Vices of the Political System of the United States,
in 12 The Papers of James Madison, 34557 (U. of
Chicago Press, 1962).
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