« Gun Mfr suits and the dormant Commerce Clause | Main | NRA President Sandy Froman on ABC World News Tonight »
John Adams and the right to arms
I've previously suggested that the most interesting and informative approach to the framing of the Second Amendment is to assume that each Framer meant what he said, and to seek explanations of why their wording differed. This is at once more challenging, and more productive, than assuming that a Framer who said the militia was essential was really saying that everyone had a right to arms, or that a Framer who said that the people have a right to keep and bear arms was really saying that militia duty (and it was a duty, not a right) is important to a republic.
So let's try that with John Adams, principal drafter of the 1780 Massachusetts Bill of Rights, which recognized that "The people have a right to keep and to bear arms for the common defense." It has two innovations: (1) for the first time, "to keep" as well as to bear, and (2) the "for the common defense" limitaton. Let's look at Adams and see why he might have added the latter provision.... [UPDATE ADDED under "read more"]
Adams had a first-rate legal mind. A reading of his "Defense of the Constitutions of the United States" (not a typo--the "United States" was then a plural, and he largely discusses State constitutions) will show him a more precise writer, and a far deeper historian, than Jefferson (although he lacks the latter's style). Unlike Jefferson, who wrote casually of revolutions every 25 years to fertilize the tree of liberty, Adams feared mobs and popular uprisings.
He was also a strong Classical Republican. The 1780 constitution limited membership in the lower house of the legislature to persons owning 100 pounds value in realty, and the upper house to persons owning 300 pounds. Holding office was not a right of every free man -- it was reserved to major landowners, in accord with Classical Republican beliefs.
A precise thinker who was concerned about mobs would worry that a broad statement of a right to keep and bear arms would protect an armed mob. After all, they are "keeping" and "bearing" arms. Adam's Defense of the Constitutions indicates he was alert to this concern:
To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, counties or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government.
Adams doesn't want a right to arms for just any purpose: he wants one for self-defense, for militia-type service, and not for anarchy. Thus, I believe, his drafting.
Three things bear emphasis here. First, that does not mean that Adams wanted a select militia, where only a part of the citizenry was armed. As Halbrook points out in The Right to Bear Arms, Adams also proclaimed that "A select militia will soon become a standing army." Second, Adams was by no means hostile to widespread armament as such. After all, he inserted the words "to keep" for the first time in a State constitution; the right now clearly pointed to private arms ownership, not just bearing arms. Third, as I note elsewhere, the first Senate voted down a proposal to insert "for the common defense" in the federal Bill of Rights. Apparently Congress did not share his worries, or else was alert to the fact that the 1780 constitution's reference to common defense had stirred protests and petitions from Massachusett's towns (See my Historiography article in the sidebar for details, p. 42).
UPDATE in light of comments:
1. I regard militia service as primarily duty rather than right, since the core of the legal arrangement was to require people to perform a service rather than give them an option. I haven't read Gerry and the debates in the first House in a while, but as I recollect one big concern over Madison's conscientious object clause was that it would allow people to wiggle out of militia duty and thus undermine the system (I recollect that some critics scoffed that the entire American people were unlikely to turn Quaker just to get out of serving). Militia duty meant travel, muster, drill, and risk of court martial and fine for failure to arrive, or having a nonfunctioning or nonstandard gun. (Norman Heath's study of appeals from militia court martials shows this was not a small risk). Americans seemed to have had a sort of love-hate relationship here. All agreed that a militia was necessary -- but that if that were left to choice, individually many if not most people wouldn't show up. As I see it, the right to arms clause guarantees that Americans could decide the question of whether to be armed, and the militia clause suggests that "no" was the wrong answer to that question. Perhaps we should analogize it to the jury? A person has a right to jury trial. You or I would probably be offended if we were singled out as unworthy to be a juror (as a generality), and might thus regard it as something like a right. But, all in all, we're not calling up the clerk of the court to demand a jury summons ASAP.
2. The 1684 statute in comments is interesting. The "impressment" of arms at militia musters at first glance suggests the government was doing the seizing, but the later reference to seizure under attachment, execution, etc. puts it in a different light. If you had a judgment against a debtor, he lives far out in the country and has little personal property, how do you collect? Well, you know he has to show up for militia muster, and then he'll be bringing one valuable item of personal property -- his musket. So send the sheriff out to the muster to execute the judgment by seizing and selling his musket! Apparently that was happening frequently enough to where the King and Parliament had to forbid the practice because it was discouraging attendance at musters.
4 Comments | Leave a comment
The word "keep" seems to give people historical heartburn when in reality there is evidence that the term meant personal ownership. Often this was in reward for service. Under the Laws of the Colony of Virginia, October 1705-- 4th ANNE, An Act for Settling the Militia: “And for the encouragement of every soldier in horse or foot to provide and furnish himself according to this act and his security to keep his horse, arms and ammunition, when provided.”
The carrot and stick approach to private ownership was also tried under April 1684-- 36th CHARLES II, An Act for better supply of the country with arms and ammunition. The seizure of “private” firearms not connected to militia service for failing to supply militia arms may be the Virginia genesis to get the words the right of the people to keep and bear arms into the ratification debates of the U.S. Constitution: "For the encouragement of the inhabitants of this his majesties collony and dominion of Virginia, to provide themselves with arms and ammunition, for the defence of his majesties country, and that they may appear well and compeletely furnished when commanded to musters and other the king's service, which many persons have hereto delayed to do, for that their arms have been imprest and taken from them.-- Be it (a) enacted by the governour, councill and burgesses of this present general assembly, and the authority thereof, and it is hereby enacted, That all such swords, musketts, (b) pistolls, carbines, guns, and other armes and furniture, as the inhabitants of this country are already provided, or shall provide and furnish themselves with, for their necessary use and service, shall from henceforth be free and exempted from being imprest or taken from him or them, that are already provided or shall soe provide or furnish himselfe, neither shall the same be lyable to be taken by any distresse, seizure, attachment or execution, Any law, usage or custom to the contrary thereof notwithstanding."
Service in the Militia was a duty, but this was the only way to achieve a well regulated militia which was the right of common defense.
Rudy DiGiacinto states: "The word "keep" seems to give people historical heartburn when in reality there is evidence that the term meant personal ownership."
I think it is more than just personal ownership. Certainly, personal ownership is included, but it appears to include the right to use the the arms for all legitimate purposes, whether it be self defense, allowable hunting and the like. The origin of the term seems to be derived from English Game laws which prohibited the "keeping" of certain weapons in order to prevent illegal poaching. These game law, were in turn, used by the crown to disarm Protestants, prior to the English Bill of Rights.
The most ridiculous assertion I have seen regarding the word "keep" was in the Potamic Institutes Amicus Brief in Emerson. They alluded that "keep" was a reference to the innermost portion of a castle where weapons are stored. That they would even mention such a theory as a possibility defies logic.
You are correct, the comments made by Gerry were in response to the conscientious objector clause. He stated as follows:
"Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms."
A good source for the complete debates of the 1st Congress regarding the 2nd Amendment can be found here:
http://www.constitution.org/mil/militia_debate_1789.htm
The objection appears related to similar objections the English had with replacing Protestants in the militia with Catholics prior to the English Bill of Rights.
The point regarding jury duty is well taken, and I have used that as a present day analogy for the the militia "right-duty" duality. What about a law which excluded blacks from jury service? Are their rights infringed by such a law? J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127 (1994):
"We have recognized that, whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice."
Certainly, I do agree that jury service is primarily a duty... but it is also a right, not only for the litigants but for the population at large to insure that a true "jury of peers" decides factual issues. Similarly, our founders viewed militia service as not merely a duty but also an important right, to insure that the militia was representative of, and drawn from the "whole body of people". Attempts to arbitrarlily exclude people would create a "select militia".
No matter how many times you say that service in the militia was not a right but a duty, I will continue to insist that, at least during the colonial period and before, service in the militia was viewed as both a right and a duty. How else do you explain Gerry's comments during the ratification of the 2nd Amendment?