American Society for Legal History



The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of ...
FORUM:          RECONSIDERING                    THE SECOND   AMENDMENT




         The Second Amendment:A Missing
      ...
120                 Law and History Review, Spring 2004
out challenge on just these grounds, however, as a recent call for...
The Second Amendment: Missing TransatlanticContext
                               A                                       ...
122                  Law and History Review, Spring 2004
ondAmendment had recourseto history:whatis now settledConstitu-
 ...
The Second Amendment:A Missing TransatlanticContext                      123

al contextknown and availableto the politica...
124                   Law and History Review, Spring 2004
matters constitutional were at issue."' It is this transatlantic...
The Second Amendment:A Missing TransatlanticContext                      125

ple loomed large in their awareness.1s Histo...
126                    Law and History Review, Spring 2004
"invaluable" Circulating volumes to his friends,Adams wroteto
 ...
The Second Amendment:A Missing TransatlanticContext                       127

With good reason he warnedthat groundinglib...
128                   Law and History Review, Spring 2004

Scottish emigres who broughttheir resentmentswith them.29      ...
A
          The Second Amendment: Missing TransatlanticContext                    129

ons, in any dwelling-house, barn, o...
130                   Lawand History      Spring2004
                                    Review,
Burghofferedas counterexa...
The Second Amendment: Missing TransatlanticContext
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132                  Law and History Review, Spring 2004

land, thereby excluding the Scots from service and depriving the...
The Second Amendment: Missing TransatlanticContext
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helpless.Appealingto Johnan...
The Second Amendment: Missing TransatlanticContext
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136                   Law and History Review, Spring 2004

Councilin 1708 left a void in the chainof constitutional author...
The Second Amendment: Missing TransatlanticContext
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slaves, except thatthey always carryarms,becausefor the most ...
The Second Amendment: Missing TransatlanticContext
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eighteenth-century rights in the felt necessities of their time,...
The Second Amendment: Missing TransatlanticContext
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   Gerry'sconcernsechoed the ...
Second Amendement And International Context
Second Amendement And International Context
Second Amendement And International Context
Second Amendement And International Context
Second Amendement And International Context
Second Amendement And International Context
Second Amendement And International Context
Second Amendement And International Context
Second Amendement And International Context
Second Amendement And International Context
Second Amendement And International Context
Second Amendement And International Context
Second Amendement And International Context
Second Amendement And International Context
Second Amendement And International Context
Second Amendement And International Context
Second Amendement And International Context
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Second Amendement And International Context

  1. 1. American Society for Legal History The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of "The Right of the People to Keep and Bear Arms" Author(s): David Thomas Konig Source: Law and History Review, Vol. 22, No. 1 (Spring, 2004), pp. 119-159 Published by: University of Illinois Press for the American Society for Legal History Stable URL: http://www.jstor.org/stable/4141667 Accessed: 24/10/2009 13:32 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/action/showPublisher?publisherCode=illinois. Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. American Society for Legal History and University of Illinois Press are collaborating with JSTOR to digitize, preserve and extend access to Law and History Review. http://www.jstor.org
  2. 2. FORUM: RECONSIDERING THE SECOND AMENDMENT The Second Amendment:A Missing Context for the Historical Transatlantic Meaning of "theRight of the People to Keep and Bear Arms" DAVID THOMAS KONIG The presentessay seeks to work at the intersectionof law and history,a meeting point where interpretation the Second Amendmenthas been of more characterized collision thanconfluence.Analysis broughtto bear by on the historicalmeaningof "therightof the peopleto keep andbeararms"' has coalescedaroundtwo competingnormative interpretations: eitherthat the amendment guarantees a personal,individual rightto beararms,or that it appliesonly collectivelyto the effectivenessof the militia.It is a premise of this essay thatboththesemodelsarehistorically the unsatisfactory, prod- ucts of present-day normativeagendasthathave polarizedthe debateinto two competingandlargelyahistoricalmodels-a type of historians' falla- cy thatDavidHackett Fischerhas labeledthe "fallacyof false dichotomous questions."Fischer's descriptionaptly describesthe currentcontroversy over the historicalmeaningof the SecondAmendment: additionto be- in ing "grossly anachronistic," two opposingpositions "aremutuallyex- its clusive, and collectively exhaustive, so that the there is no overlap, no openingin the middle,andnothingis omittedat eitherend."2 is not with- It 1. "A well regulatedmilitia,being necessaryto the securityof a free state, the right of the peopleto keepandbeararms,shallnotbe infringed" (U.S. Constitution,amend.2; ratified December 1791). 15, 2. David Hackett Fischer, Historians' Fallacies: Toward a Logic of Historical Thought (NewYork: & Harper Row,1970),9-12. DavidThomasKonigis a professorin the department historyand professorin of the school of law atWashingtonUniversity St. Louis.He wouldlike to acknowl- in edge the contributions Stuart of Banner,BarryCushman, Don Higginbotham, Dan Hulsebosch,Stan Krauss,Jack Rakove,Ted Ruger,RichardSher, the late Row- land Berthoff,and the four anonymouspeer reviewersof this journal. Law and History Review Spring 2004, Vol. 22, No. 1 ? 2004 by the Board of Trustees of the University of Illinois
  3. 3. 120 Law and History Review, Spring 2004 out challenge on just these grounds, however, as a recent call for a "new more sophisticated paradigm"3attests. This essay seeks to provide that new model and to do so by grounding the "right of the people to keep and bear arms" in eighteenth-century concepts of rights, not those of the twenty-first century, and to contextualize the right to bear arms in an eighteenth-cen- tury political struggle now largely ignored but well known to constitutional polemicists framing the Constitution and the Bill of Rights: Parliament's rebuilding of an English militia while denying the Scots the right to do so, despite Scotland's history and its claimed constitutional rights according to its coequal status in Great Britain. That struggle nevertheless remains a missing context that prefigured American debates over constituting and guaranteeing local militias in the coequal states of the federal union estab- lished by the United States Constitution in 1787 and 1788. Once the time came for seeking a written guarantee of local militia effectiveness in the federal Constitution, the language and substance of this transatlanticlega- cy had great influence. As experience, they gave political urgency to the drafting and ratification of the Second Amendment; as a theory of rights, they embodied an eighteenth-centuryindividual right exercised collectively. It is no accident that the Second Amendment begins with a preamblethat resonates with the preamble to the Militia Act sought by the Scots, for the framers of the Amendment were responding to a similar political and con- stitutional crisis. In the shared political culture of provincial Britons on both sides of the Atlantic, proponents of organized local militia expressed con- cerns about the past, present, and future effectiveness of a citizen militia. In common, distrust of a central government that denied localities the right to arm and organize their own militia units aroused fears that they would be unable to resist oppression from the center, invasion from abroad, or insurrection from within. The protection being sought, this shared transat- lantic discourse reveals to us, lay in the maintenance of well-regulated militias consisting of able-bodied men bearing their own arms for that purpose. Indeed, to serve in the militia and participate in this civic duty was more than a duty: it was a civic right of a peculiarly eighteenth-cen- tury nature unlike either the "individual"or "collective" models argued for today. On neither side of the Atlantic, that is, did the debate concern itself with this right in the present-day sense of an "individual" or personal con- stitutional right; but at the same time, its common emphasis on widespread individual arms-bearing for public service distinguishes it from today's narrowly applied "collective" application to the National Guard. No indi- vidual right existed unrelated to service in a well-regulated militia; no ef- 3. Saul Cornell, "'Don't Know Much About History': The CurrentCrisis in Second Amendment Scholarship," Law Review29 (2002): 657. NorthernKentucky
  4. 4. The Second Amendment: Missing TransatlanticContext A 121 fective militia could serve its purpose without an armed citizenry. This type of right may appear paradoxical to us today, but it fitted "the inner coher- ence of a given system of beliefs" 4 held by people in the past, and which made sense to those familiar with the concept of an individual right exer- cised collectively. It is their context that this essay seeks to uncover and to add to our un- derstanding of that right. Explaining the need to derive meaning from con- text, Quentin Skinner writes, "We need to begin by recreating as sympa- thetically as possible a sense of what was held to connect with what, and what was held to count as a reason for what, among the people we are studying."5These people were scarcely a monolithic group of "framers"- a concept recognized as ahistorical not only today6 but for centuries by those attempting to understandthe meaning and intent of lawmakers. Writ- ing in the sixteenth century of the need to apply statutes by inquiring and acting ex mente legislatorum, Sir Thomas Egerton admitted that such an inquiry was plagued by the participationof "so manie heades as there were, so many wittes; so many statute makers, so many myndes." Even so, he pushed on, for "notwithstanding, certen notes there are by which a man maie knowe what it was."7 This essay seeks to uncover and examine an overlooked historical context of the Second Amendment so that we "maie know what it was" when we try to understandits historical meaning. It does not present a normative in- terpretationof the Second Amendment, although the context it uncovers has inescapable meaning to today's originalist debate and the goals of its pro- tagonists.8This is not the first time, to be sure, that interpretationof the Sec- 4. QuentinSkinnerhas ably explainedhow apparent historicalparadoxescan deflectus fromunspokenbut fundamental underlying politicalbeliefs and lead us to fail "to identify some local canon of rationalacceptability."QuentinSkinner,"A Reply to My Critics,"in Meaningand Context: Quentin Skinner His Critics,ed. JamesTully(Princeton: and Princeton UniversityPress, 1988), 244. 5. Ibid. Emphasisadded. 6. Neil Richardswarnsagainstsucha fallacyandexpresslyeschewscapitalizing "framers" ("Clioandthe Court: Re-Assessment the Supreme A of Court'sUses of History," Journalof Law & Politics13 [1997]:845). Fora succinctsummary theway theplurality viewpoints of of amongbothFederalists Antifederalists undergone and has into "homogenizing" two distinct groups,see SaulA. Cornell,TheOtherFounders: Anti-Federalism the DissentingTradi- and tion in America,1788-1828 (ChapelHill: University NorthCarolina of Press, 1998), 6-8. 7. A Discourseuponthe Exposicion& Understanding Statutes:With Thomas of Sir Eger- ton'sAdditions, SamuelE. Thorne ed. (SanMarino: Huntington Library,1942), 151.Lestone be guiltyof an ahistorical of Egerton, mustbe notedthathis workreferred "theEx- use it to posicionandUnderstanding Statutes," not to their"interpretation," of and a termthatconnot- ed farmorejudicialauthority thanhe or anyoneelse at the time wouldhaveaccepted. 8. The term"originalism" datesfrom 1980, when PaulBrestintroduced in a strenuous it of critique "thefamiliar to approach constitutional that adjudication accords bindingauthority
  5. 5. 122 Law and History Review, Spring 2004 ondAmendment had recourseto history:whatis now settledConstitu- has tionaldoctrine to the meaningof "therightof thepeopleto keepandbear as arms" drewon historicalsourcesin 1939, whenthe Supreme Court, Mil- in ler v. U.S.,heldthattheamendment protected only thoserightshaving"some reasonable relationship the preservation efficiencyof a well regulated to or militia."Since that time the Courthas not expressedany opinionson the meritsof thatdecisionor on challengesarguing the framers 1791had that in established individual any rightof a privateperson "tokeepandbeararms."9 This historicallygroundeddefinitionfrom 1939 is now underserious challenge, as many scholars have put forwarda contraryinterpretation advancingthe right as an individualone. The variousstrandsof scholar- this ship supporting argument have been anointedthe "Standard Model" of Second Amendmentinterpretation its proponents: unifiedtheory by a that saw the amendment articulating only the right and obligation as not of armedcitizens to defendthe stateagainstinvasion,butto protectthem- selves collectivelyagainstthe tyranny the stateandindividually of against the violence of theirneighbors.10 At the veryleast,the present and essay aimsto provide deepened broad- a ened context for "the complexes of thoughtlying behind the wordsand clausesof the Constitution, becausethathistoryfeeds directlyintothe orig- inalismthathasbeenin the ascendant sincethe early1980s."'As usedhere, therefore,"historical context"is an intellectual,political,andconstitution- to the text of the Constitution the intentionsof the adopters." or of Brest was responding, course, to an argumentalready"familiar," since 1980 the debate over thattermhas and generateda vast literature articles,books, and law review symposia.See, for example, of Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York:A. A. Knopf, 1996), esp. chap. 1, "ThePerils of Originalism," 3-22; also, his in the collection of a rangeof opinionson both sides of the controversy Interpreting Con- stitution(Boston:BedfordBooks, 1990). See also the special symposiumissue, "Fidelity in Constitutional Theory,"Fordham LawReview65 (1997). 9. 307 U.S. 174, at 178. In his opinion,AssociateJusticeJamesMcReynoldscited "the debatesin the [Constitutional]Convention, historyandlegislation ColoniesandStates, the of and the writingsof approved commentators," includingone contemporaryhistorian(ibid., 178-82). In 1983 the SupremeCourtdeniedcertiorari Quiliciv. Villageof MortonGrove, in holding thatthe SecondAmendment not applyto the possessionof handguns issue did at (695 F. 2d 261 [7thCir.1982],certdenied,464 U.S. 863 [1983]).Onecannotinferanopinion on the meritsof a case froma denialof certiorari, however. 10. On the emergenceof this controversy the legal academy, CarlT. Bogus, "The in see Historyand Politics of the SecondAmendment: Primer," A LawReview76 Chicago-Kent (2000): 3-25. For a chronologically arrangedbibliography the competinginterpretations, of the see the table and appendixto RobertJ. Spitzer,"Lostand Found:Researching Second Amendment," ibid.,384-401. GlennHarlan in Reynoldsofferstheterm"Standard Model" in his "ACritical Guideto theSecondAmendment" Tennessee Review62 (1995):461-512. Law 11. StuartBanner,"LegalHistoryand Legal Scholarship," WashingtonUniversity Law Quarterly (1998): 37, 40. 76
  6. 6. The Second Amendment:A Missing TransatlanticContext 123 al contextknown and availableto the politicalcommunityarguingfor the rightin question,and whose relevanceto the discussionswas apparent to those takingpartin them.It seeks to recovera commonlyrecognizedand explicitlycited tradition allowedparticipants the politicalprocessto that in frametheirlocal, ongoingeventswithina larger processof whichtheyknew andacknowledged they were a part.12 Finally,it mustremainstrictlywith- in the temporal parameters the peoplebeing studied,sharplyandclearly of limited by the terminusad quem of 1791, and unaffectedby subsequent politicaleventsthatforcedreassessments introduced motivations or new and factorsthatchangedthe very meaningof wordsthemselves.13 I. The Scottish Example and the British Background of the Militia Debate It is a commonplaceamonghistoriansthat Revolutionary Americanssaw themselvesas fightingfor therightsof Englishmen. Indeed,one scholarhas arguedthatthe "Englishinfluenceon the SecondAmendment the miss- is ing ingredient thathas hamperedeffortsto interpret intentcorrectly."'4 its Americanswere not, however,truly"English" much as they were Brit- so ish, a distinctionthey knewwas muchmorethansemantic,especiallywhen 12. JackN. Rakoveputs its clearly in describinghis goals in findingthe "meaning" of the Constitution's text:"[T]towhat extentdid the structure debateand decision-making of in 1787-88 enable a coherentset of intentionsandunderstandings form aroundthe text to of the Constitution?"; "[W]henwe do ask whatthe framersandratifiersthoughtabout and particularsubjects,how do we reconstruct theirideas and concerns?" (OriginalMeanings, to xiv). JackP. Greeneaddresses way people in the past attempted articulate the theirplace in historyas "the dauntingtask of tryingto renderit comprehensible, both to those who belong to it and those who do by identifyingand definingthose commonfeatures not,.... of behaviorandbelief, of collective andindividualexperience... ." ("TheIntellectualRe- in in construction Virginia theAge of Jefferson," Jeffersonian of Legacies,ed. PeterS. Onuf [Charlottesville:UniversityPress of Virginia,1993], 225). 13. Forthis reason,the presentessay does not deal with questionsconcerningthe subse- quentimpactof the fierce political contests of the Federalistera. Nor does it addressthe impactof the Fourteenth Amendmentand the incorporation the amendment, of discussed by Akhil Reed Amar in The Bill of Rights: Creation and Reconstruction (New Haven: Yale UniversityPress, 1998), 46-59, 257-66, andby DavidYassky,"TheSecond Amendment: Structure, History,andConstitutional MichiganLaw Review99 (2000): 651-60; Change," nor does it discuss the proposition the amendment that to mightbe "translated" contempo- raryissues, as suggestedin the generalmodel presented LawrenceLessig, "Fidelityas by Translation: Fidelityas Constraint,"FordhamLawReview65 (1997): 1365-1433, withcom- ments to 1517; or by JeffreyRosen, "Translating Privilegesand ImmunitiesClause," the George Washington University Law Review 6 (1998): 1241-68, with comments to 1297. 14. Joyce Lee Malcolm, To Keep and BearArms: The Origins of an Anglo-American Right UniversityPress, 1994), xii. Harvard (Cambridge:
  7. 7. 124 Law and History Review, Spring 2004 matters constitutional were at issue."' It is this transatlanticBritish context, therefore, thatis missing. Americans sharedthe experience of those who had claimed the coequal rights of Englishmen only to see them denied by a metropolitan government that regarded those living outside England-and even many of those living in the "country"beyond the court at London-as rude provincials bearing the "stigmas" of inferior culture and lesser consti- tutional status. "A sense of inferiority pervaded the culture of the two re- gions," write Bernard Bailyn and John Clive of Scotland and North Ameri- ca, "affecting the great no less than the common." For good reason the American Revolutionaries proudly claimed the British legacy of "Whigs." Once a term of derision that some associated with the Scots,16it became the proud name of the parliamentaryopposition that stood against the Stuartsin the 1670s; when a Whig oligarchy proved no less dangerous to liberty in the eighteenth century, they became "TrueWhigs" or "Real Whigs" continuing the struggle."1 To British North Americans, their constitutional history thus included not only England's experience, but that of a Greater Britain whose exam- 15. JohnPhillip Reid, perhapsthe most notablescholarof the transatlantic antecedents of American Revolutionary legal thought,notablydiscusses"TheBritishness Liberty" of in his The Conceptof Libertyin theAge of theAmericanRevolution(Chicago:University of ChicagoPress,1988), 14-17. See, generally, LindaColley,Britons:Forging theNation, 1707- 1837 (New Haven:Yale UniversityPress, 1992), 30-43. In recentyears, historianshave shownhow a broadened "British" perspectiveilluminates historyof boththeBritishIsles the and its far-flung colonies. See "Forum: The New BritishHistoryin AtlanticPerspective," American HistoricalReview104 (1999):426-500. Especiallypertinent thecontributions are of DavidArmitage,Ned Landsman, Eliga Gould. and 16. Bernard Bailyn andJohnClive, "England's Cultural Provinces:ScotlandandAmeri- ca," William Mary Quarterly, ser., 11 (1954): 209-10. On the "'country' and 3d. vision of English politics"held by "anti-Court independents within Parliament the disaffected and without," Bernard see Bailyn,IdeologicalOriginsof theAmerican Revolution (Cambridge: Harvard UniversityPress, 1967):35-36. Scottishradicalschafedat theircountry'ssubordi- nationunderwhatthey sneeringlycalled "thecelebratedUnion,"and theAmericanRevo- lutionprovided only a democratizing not exampleto emulate, an argument theScots, but that too, should seek "a wise, virtuous,and independent for government" Scotland(Michael Durey,Transatlantic Radicalsand theEarlyAmerican Republic (Lawrence: University Press of Kansas,1997), 74; Oxford s.v. EnglishDictionary,http://dictionary.oed.com, "whig"). 17. Caroline Robbins,TheEighteenth-Century Commonwealthman: Studiesin the Trans- mission,Development and Circumstance EnglishLiberalThought of from the Restoration of CharlesII until the Warwith the ThirteenColonies(New York: Atheneum,1959). Rob- bins labels this group as small and ultimatelyunsuccessfulin Englishpolitics,but impor- tantfor having"servedto maintain revolutionary a traditionthereandto link the histories of English strugglesagainsttyrannyin one centurywith those of Americaneffortsin an- other.The Americanconstitution employs manyof the devices the Real Whigs vainlybe- soughtEnglishmento adoptandin it must be foundtheirabidingmemorial" (ibid.,4). On A "PowerandLiberty: Theoryof Politics"in Revolutionary America,see Bailyn,Ideolog- ical Origins,chap. 3, 55-93.
  8. 8. The Second Amendment:A Missing TransatlanticContext 125 ple loomed large in their awareness.1s Historians have amply demonstrat- ed the "varied ways the intellectual bond linking America and Great Brit- ain in the colonial period could make its presence manifest," and how "events of that period frequently come more sharply into focus when British history on a similar subject is examined." Constitutional issues in particu- lar reveal "wholesale borrowing of the slogans, metaphors, and images" of earlier British disputes.19 The life and writings of James Burgh, who left the University of St. Andrews for London and whose circle in the capital's radical community included Joseph Priestley, Richard Price, and Benjamin Franklin, illustrate this transatlanticconnection. With the empire in political crisis in the 1770s, Burgh explicitly merged the inferiority of all provincial British identities when he addressed part of his Political Disquisitions "to the independent Part of the people of GREAT-BRITAIN, IRELAND, and the Colonies" in 1775.20 Cited in The Federalist, Burgh's work was widely read in Ameri- ca because of its sympathetic evocation of shared ideas and grievances. Burgh's writings, note Oscar and Mary Handlin, had special resonance in North America, bearing "striking resemblances to that which Americans reached by positive generalizations about the institutions which had in actuality evolved about them." Aware of the common grievances of pro- vincial Scots and Americans, Burgh sent his 1774 London edition to John Adams, who wrote back to Burgh thanking him and lavishing praise on his 18. On how colonialAmericansrecognizedtheirrole in the largersweep of the history of liberty,see David ThomasKonig, "Constitutional Contexts:The Theoryof Historyand the Processof Constitutional Changein Revolutionary America," Constitutionalism in and AmericanCulture: Writing New Constitutional the History,ed. Sandra VanBurkleo, F. Ker- mit Hall, andRobertJ. Kaczorowski (Lawrence: UniversityPress of Kansas,2002), 3-28. 19. PaulS. Boyer,"Borrowed Rhetoric: Massachusetts The of Excise Controversy 1754," William Mary Quarterly, ser.,21 (1964): 328-51. The episode in questionreached and 3d. back to a Britishcontroversy 1733. of 20. JamesBurgh,"Conclusion," PoliticalDisquisitions: Enquiry PublicErrors, in An into Defects,andAbuses.Illustrated and establisheduponFactsandRemarks, by, extractedfrom a varietyof Authors,ancientand modern.Calculatedto draw the timelyattentionof Gov- ernmentand People to a due Consideration the Necessity,and the Means, of Reforming of those Errors,Defects, and Abuses;of Restoringthe Constitution, Saving the State, 3 and vols. (Philadelphia,1775), 3: 267. Burgh'sand Franklin's mutualaffinityis worthnoting, especiallyin view of the similarities betweenthe former'sDignityof HumanNature(1754) andthe latter'sPoor Richard's Almanack, which was publishedfrom 1733 to 1758. In fact, the authorship "TheColonist'sAdvocate"letters(1770) has been attributed both men. of to CarlaHay,"Benjamin Franklin, JamesBurgh,andtheAuthorship 'TheColonist'sAdvo- of cate' Letters,"Williamand Mary Quarterly, ser., 32 (1975): 111-24. Whoeverthe au- 3rd thor,what is significantfor a properappreciation this sharedtransatlantic of political cul- ture is thatthis work, like so many othersat the time, was "a work of compilationrather thanan originaleffort." Hay, ibid., 120, remindsus that sharingandborrowingwere char- acteristicof eighteenth-century politicaldiscourse.
  9. 9. 126 Law and History Review, Spring 2004 "invaluable" Circulating volumes to his friends,Adams wroteto gift. the Burgh, "I have contributedsomewhat to make the Disquisitions more knownand attended in severalpartsof America,andthey areheld in as to high estimation all my friendsas theyareby me. The moretheyareread, by the more eagerly and generallythey are soughtfor."21 Adams'seffortsmusthavebeen successful:two yearslater,the residents of the westernMassachusetts town of Pittsfield,demanding new consti- a tutionfor the formercolony, restedtheirhopes on "someof the Truths we firmly believe andarecountenanced believingthemby the mostrespect- in able political writersof the last andpresentcentury,especiallyMr.Burgh in his political Disquisitionsfor the publicationof which one half of the Continental Congressweresubscribers."22 Indeed,demand theworkwas for such that Robert Bell, a Scottish bookseller in Philadelphiawho would publishThomasPaine'sCommon Sense in 1776, undertook 1775Amer- a ican edition whose prepublication "Encouragers" includedGeorgeWash- ington,SamuelChase,JohnDickinson,Silas Deane,JohnHancock, Thom- as Jefferson, Thomas Mifflin, Thomas McKean, Robert Morris,Roger Sherman, JohnSullivan,JamesWilson,andAnthonyWayne.Fifteenyears later,Jeffersonrecommended to his new son-in-lawThomasMannRan- it dolph, especially as a practicaldemonstration politicaltheory.23 of For Burgh, "historywas an inexhaustiblemine out of which political knowledgewas to be broughtup."24 His second volume, "whichtreatsof the colonies,"was largelydevotedto the way parliamentary had corruption poisoned the government the colonies. Directlyaddressing question of the of constitutionalsubordination within the empire,Burghmaintained that "thecolonistsdo not deserveto be deprived the nativerightof Britons." of 21. TheFederalist#56. The editioncited hereinis thatof JacobE. Cooke,TheFederalist (Middletown:WesleyanUniversity work Press, 1961),citationat 382. BailynlabelsBurgh's the "keybook"of the Revolutionary generation (IdeologicalOrigins,41). OscarandMary Handlin, "James Burgh and Revolutionary Theory," Proceedings of the Massachusetts His- torical Society 73 (1961): 52. John Adams, The Worksof John Adams, Second President of the United States: with a Life of the Author;Notes and Illustrations by his Grandson Charles FrancisAdams, 10 vols. (Boston:Little, Brown, 1850-56), 9: 350-51. 22. May 29, 1776. The Popular Sources of Political Authority: Documents on the Massa- chusettsConstitution 1780, ed. OscarandMaryHandlin(Cambridge: of Harvard Universi- ty Press, 1966), 91. 23. I am indebtedto Prof.RichardSherfor bringingBell's editionof Common Senseand the list of subscribers the Philadelphia in editionof the Disquisitionsto my attention.The list can be foundat the beginningof volumeIII.In advertising American the edition,Burgh announced thatthis newly completedthirdvolume was "peculiarly necessaryat this Time for all the Friendsof CONSTITUTIONAL LIBERTY, whetherBritonsorAmericans." Jef- fersonToThomasMannRandolph, May30, 1790,ThePapersof Thomas Jefferson, Julian ed. P. Boyd et al., 28 vols. (Princeton: PrincetonUniversityPress, 1950- ), 16: 449. 24. Robbins, Commonwealthman, 364-65.
  10. 10. The Second Amendment:A Missing TransatlanticContext 127 With good reason he warnedthat groundingliberties on one's status as "English" a dangerous was presumption anyonenot living in England: for the termprivilegedmetropolitan rights at the expenseof those claimedby provincialson bothsides of theAtlantic.He notedthe "affectation call- of ing the Britishparliament Englishparliament, was usual andproper the as beforethe union;but ridiculousso long as the union subsists."25 Brit- For ish NorthAmericans,this sharedhistoryloomed largeas a cautionary tale of how provinces might be submerged,suppressed,and oppressedby a metropolitan centeror how, from a union of supposedequals, one partner might come to dominateanotherand enslave it underthe heel of military threat.It was in this sharedhistoricalexperienceas Britonsthat the con- stitutionalgoals of the Revolutionary mustbe seen, and especially so era within the context of forming the federal union. "The history of Great Britain," wrote JohnJay in TheFederalist,"is the one with which we are in generalthe best acquainted, it gives us manyusefullessons.We may and profitby theirexperience,withoutpaying the price which it cost them."26 The right to bear arms was a deeply cherishedright whose value lay firmlyembeddedin the historyof the peoples of Britain.Contextualizing this rightpurelywithinthe English experiencemay mislead us,27 because for Scots, as provincialBritons,the issue had special meaningand epito- mized their grievancesas constitutionally subordinate. loss represent- Its ed not merelya theoretical buta historicallydemonstrable possibility, fact. Thathistory,moreover, was still unfoldingbeforetheireyes, andthe Scot- tish experiencetherefore specialresonanceat the draftingof the Con- had stitutionand the Bill of Rights.28 historyof Scottish subordination The at the handsof the Englishwas commoncurrency amongthose BritishNorth Americanswho traveledto Britain or who were educatedby the many 25. Burgh, Political Disquisitions, 2: vii; "Conclusion," 279, 3: 336. 26. John Jay, The Federalist #5, 24. 27. Malcolm,ToKeepand Bear Arms,largelyconfinesitself to the seventeenth century andthenleaps forward time to 1791 withoutmentionof the profound in eighteenth-century events and strugglesthatintervenedand provideda powerfulcautionary historylesson to those whose reservations aboutthe Constitution to the draftingand ratification the led of Second Amendment.For a critique, see Lois Schwoerer,"To Hold and Bear Arms: The EnglishPerspective," Chicago-Kent LawReview76 (2000): 27-60. 28. DanielWalkerHowe arguesfor a Scottishsocial andintellectual,thoughless explic- itly political,perspective "Whythe ScottishEnlightenment Useful to the Framers in Was of the American Constitution," Comparative Studies in Society and History 31 (1989): 572- 87. For Scottish Enlightenmentinfluenceon state constitutions,see Durey, Transatlantic Radicals,51. Scottishradicalschafed at theircountry'ssubordination under"thecelebrat- ed Union,"and the AmericanRevolutionprovidednot only a democratizingexample to emulate,but an argument the Scots, too, should seek "a wise, virtuous,and indepen- that dentgovernment" Scotland(ibid.,74). Also useful is AndrewHook,ScotlandandAmer- for ica: A Study of Cultural Relations, 1750-1835 (Glasgow and London: Blackie, 1975).
  11. 11. 128 Law and History Review, Spring 2004 Scottish emigres who broughttheir resentmentswith them.29 Especially proudof their militaryheritage, Scots lamentedthe way the militias of LowlandScotlandhad been allowed to deteriorate were not reconsti- and tuted at the Act of Union. Variousefforts to do so were frustrated, and passage of a bill to restorethe Scottish militia in 1708 prompted last the exercise of the royal veto.30Seven years laterParliament went a step far- ther and disarmedthe Highlandcounties afterthe failureof the "lateun- natural rebellion" the in supporting royalclaimsof the oustedStuarts 1715. The "actfor more effectualsecuringthe peace of the Highlandsin Scot- land"exemptedthose owning the large sum of ?400 in property, who or voted,butmadeit a criminaloffense, punishable fine andforfeiture, by for anyone else in those counties "to have in his or her custody,use or bear broadsword,or target,poynard,whingar,or durk,side-pistolor side-pis- tols, or gun, or any other warlike weapons, in the fields, or in the way, coming or going to, from,or at any church,market,fair,burials,huntings, meetings,or any otheroccasion whatsoever... or to come into the Low- Countries armed, as aforesaid.... "31 Jacobiteinsurrection eruptedagain in 1745, and afterthat "mostauda- cious andwickedrebellion," Parliament strengthened banon keeping its and bearing weapons Thoughit continued exemptthosethat in the Highlands. to it hadin 1715,in 1746it no longerdistinguished betweenarmskeptathome andthose bornepublicly.Instead,it set out an elaborate program notifi- of cationof summonsto deliverweaponsand providedfines, imprisonment, conscription "hisMajesty's into or "to forcesinAmerica" transportation any of his Majesty'splantations beyond the seas"for "all personssummoned to deliverup theirarmsas aforesaid,who shall,from and afterthe time in such summonsprefixed,hide or conceal any arms,or otherwarlikeweap- 29. JamesMadison'seducationat Princeton, whosepresident Scot JohnWitherspoon the exertedenormousinfluenceover students,is but one example.IrvingBrant,JamesMadi- son. TheVirginiaRevolutionist, vols. (Indianapolis: 6 Bobbs-Merrill,1941), 1: 77. Wither- spoon suggestedreadingsthatwere heavily weightedtowardthe ScottishEnlightenment. WilliamSmith of Aberdeenbecame the firstprovostof the College of Philadelphia, and fellow Aberdonian WilliamSmallwas ThomasJefferson's mentorat the Collegeof William and Mary.Robbins,Commonwealthman, Born and educatedin Scotland,JamesWil- 194. son was deeplyinfluenced theeducation receivedat St. AndrewsandEdinburgh. by he Mark David Hall, The Political and Legal Philosophy of James Wilson, 1742-1798 (Columbia: accorded con- University MissouriPress, 1997), 8-9. Fora surveyof the importance of this nection in Americanhistoriography, RichardSher's remarksin RichardB. Sher and see Jeffrey R. Smitten, eds., Scotland and America in the Age of the Enlightenment (Princeton: PrincetonUniversityPress, 1990), 1-13. 30. John Robertson, The Scottish Enlightenment and the Militia Issue (Edinburgh: J. Donald, 1985), 6. J. R. Western, The English Militia in the Eighteenth Century. The Story of a Political Issue, 1660-1802 (London: Routledge & Kegan Paul, 1965), 162. 31. 1 Geo. I, c. 54 (1715).
  12. 12. A The Second Amendment: Missing TransatlanticContext 129 ons, in any dwelling-house, barn, out-house, office, or any other house, or in the fields, or any other place whatsoever, and all persons who shall be necessary or privy to the hiding or concealing such arms...."32 The law again provided specific description of weapons banned: the Duke of Cumberland, who had led the Hanoverian military forces in pun- ishing Scotland, expressly requested "swords to be named particularly as they won't understand them to be arms."33So broadly was the notion of "arms" construed that one court is said to have found bagpipes to be "an instrument of war."34 Scottish historians saw in their nation's forlorn past many object lessons of how metropolitan England, dominated first by tyrannical monarchs and then by a corrupt and arrogantParliament, could suppress and exploit hap- less and defenseless provincials. William Robertson, who had joined oth- er Scottish volunteers in a vain attempt to halt the Jacobite assault on Ed- inburgh in 1745, identified the galling treachery of the Scots' own "native Prince" in destroying local military power. In the conclusion to his Histo- ry of Scotland, he lamented how James VI of Scotland, once he became James I of England, had undermined the military power of the Scottish people organized and led by their feudal lords. "As long as the military genius of the feudal government remained in vigor," he wrote, the Crown could not become "the supreme law of Scotland" and had to respect local rights. But "the military ideas, on which these rights were founded, being gradually lost or disgraced, nothing, remained to correct or mitigate the rigour with which they were exercised."35 James Burgh, reminding the "independent Part of the people" of Brit- ain's provinces on both sides of the Atlantic of Scotland's lost pride and independence, recalled, "The Scots in those days, when the spirit of liber- ty ran highest, were always called by the parliaments, our brethren; not as now, the slavish, beggarly, itchy, thieving Scots." Charles II and James II also had "debauched the militia," but an armed citizenry organized and led by its local lairds had nevertheless managed to demonstrate the enduring value of a militia in the next century. The failures of militia at various bat- tles on both sides of the Atlantic might give pause to its advocates, but 32. 19 Geo. II, c. 39 (1746). 33. W. A. Speck, TheButcher:TheDuke of Cumberland the Suppression the 45 and of (Oxford:Blackwell, 1981), 173. 34. PeterHumeBrown,Historyof Scotland, 3 vols. (Cambridge: Cambridge University Press, 1909), 3: 328n. 35. William Robertson, The History of Scotland during the Reigns of Queen Mary, and KingJamesVI. Tillhis Accession to the Crownof England,with a Reviewof ScottishHis- tory to that Period, 11thedn. (1787; reprint Aberdeen:G. Clarkand Son, 1847), 386-87. The firsteditionappeared 1761. A New Yorkedition appeared 1787. in in
  13. 13. 130 Lawand History Spring2004 Review, Burghofferedas counterexamples theirsuccesses in the Jacobiterisingof 1745, in which"tworemarkable victoriesgainedby the ruffian rebels,A.D. 1745, over the king's troops,shew thata militia is not so contemptible as the friendsof a standingarmyaffectto think." described,too, the "New He Englandmilitia,whichtookLouisbourgh, 1745,"andlateremphasized A.D. the pointby praising militias"inourown plantations." the American readers could scarcelyignorethe point.As they struggledto learnfromhistoryin the draftingof theirown stategovernments, latera nationalstructure, and they constantly encountered denunciations standingarmiesandcalls for of a vigorous militia. Indeed,this policy was a staple of conventional theo- ry-part of "thecommonstockof European in the words politicalthought," of one close studentof the subject.36 the Crushing "Forty-Five" a produced bloodbath punitivesuppression of in the Highlands.Hanoverian forces underthe Duke of Cumberland de- stroyed the Scottishforces at Cullodenin April 1746 in a battlewhere,an English participant admitted,"ourmen have been prettysevere and gave no quarter." duke followed his victorywith ordersto searchhomesin The pursuitof fleeing rebels;his raidingpartiesbecame"legendary brutal-for ity and bloodshed," turning Scotlandinto "virtually occupiedterritory."37 This merciless and vengeful campaignof murderand destruction would teach the Jacobitesa bitterlesson in loyalty. It taughtanother lesson, as well, to those Scots unsympathetic the re- to bellion, becausethe Jacobitesscarcelyrepresented generalScottishpo- a litical will. Indeed,theirrebellionshocked and embarrassed manyothers as misguidedor worse. Scottishreformers seen not only thatthe High- had landshadlain open anddefenselessagainstthe atrocitiesof Englishtroops underthe Duke of Cumberland, also thatloyal Scots in the Lowlands but (the majority of the Scottishpopulation) been militarilyhelplessat the had startof the rebellionto turnbackwhatthey saw as wild andlawlessHigh- landers."Therebellionwas quelledat last,"notedAlexanderCarlyle;"but not till it had openedthe eyes of every thinkingman, and shownhim our bosom bareand defenceless." anonymousauthor,chagrined the fall An at of the capitalto the Jacobites,wrotea satiricalattackon the unarmed and 36. Burgh, Political Disquisitions, 3: 351; 2: 412, 417. John Robertson, Scottish Enlight- enmentand theMilitia,9. Robertson providesotherexamplesof Britishwriters whoseworks and enjoyed a wide readership powerfulinfluencein the AmericanRevolution, especially in the sharedoppositionto a standingarmy.AmongthemwereAndrewFletcher Saltoun, of whose impactwill be discussedbelow. 37. Speck, TheButcher,137-73 (quotations 145, 169). LindaColley moredispassion- at ately describesthe contemporary impactof this campaignandobserves,that"thegenocide that had reputedlyfollowed the Battle of Culloden was reminderenough of the English capacityfor racialismand hate"(Britons,117).
  14. 14. The Second Amendment: Missing TransatlanticContext A 131 pacific Lowlanders whose lack of armshad compelledArchibaldStewart ignominiously to handover the capitalto the rebels.The reasonwas clear to readers: Englishhad neglectedthe Scottishmilitia.38 the Not only the Scottishmilitia had sufferedby neglect, however.By the middleof the eighteenth century, own militiahadonce againfall- England's en into seriousdecay,owing to popularresentment its use for political of suppression theresistance laborers and of impoverished the financial by sac- rifice of service.39 with Francein 1756, however,forcedParliament War to an extensiveoverhaul Britain'smilitaryforces,includinga rehabilitation of of the militia.It voteda millionpoundsfor defensethatyear,40andthe next yearturnedto revivingthe militia.Urgedon Parliament WilliamPittin by efforts to rally the kingdom,its preambleset out the purposeof the bill: "Whereas well orderedand well-disciplinedmilitiais essentiallyneces- a sary to the safety,peace and prosperityof this kingdom:and whereasthe laws now in being for the regulationof the militia are defectiveand inef- fectual... ."Althoughthe act required Englishcountyofficials to compile lists of "allmen"fromeighteento fifty yearsof age, it limitedthe numbers actuallyto be recruited and allowed substitutesto serve in place of those named.The act of 1757ranto seventy-three sectionsandincludeddetailed provisionson the conductandenforcement recruitment, selectionof of the officers,the obligation countylieutenants theirdeputies"tomeet,and of and formthe militiainto regiments," the entrusting "arms,clothes, and and of accoutrements" the properofficeror chosen personnel.41 with In spite of the warcrisis, the law generatedstiff resistancefor the same reasonsit had done so before. But one omission especially enragedBrit- ons northof the Tweed:no militiaregimentswere to be organizedin Scot- 38. Alexander Carlyle, The Question Relating to a Scots Militia Considered in a Letter to the Lords and Gentlemen who have Concerted the Form of a Law for that Establishment (Edinburgh, 1760), 12-13. A TrueAccount of the Behaviour and Conduct ofArchibald Stew- art, Esq.; late Provost of Edinburgh (1748), cited by David R. Raynor, ed., "Sister Peg": A Pamphlet Hitherto Unknown by David Hume (Cambridge: Cambridge University Press, 1982), 2. Hume'sauthorship "SisterPeg" is open to seriousdoubt,andAdamFerguson of is the morelikely author; this question,see n. 46, below. on 39. T. A. Critchley, The Conquest of Violence: Order and Liberty in Britain (London: Constable, 1970), 59-67. Eliga Gould, The Persistence of Empire: British Political Culture in the Age of the American Revolution (Chapel Hill: University of North Carolina Press, 2000),72-105. 40. 29 Geo. II, c. 29 (1756). 41. 30 Geo.II,c. 25 (1757). lawrequired "allthemuskets The that delivered theser- for vice of the militia, shall be markeddistinctlyin some visible place, with the letterM, and the nameof the county,ridingor place, to which they belong"(ibid., sec. 42). No weapons were to be issued until the unit had been constituted(sec. 35), and militiamenwere to re- turnthemafterexercises(sec. 36). Colonelsor county lieutenants were authorized seize to weaponsif "necessary the peace of the kingdom"(sec. 33). to
  15. 15. 132 Law and History Review, Spring 2004 land, thereby excluding the Scots from service and depriving them of the right to organize their own militias.42All of Scotland, not merely the wild and untrustworthy Jacobite Highlands, was now deprived of a militia. Reflecting the sentiments of a majority of Scots, Scottish members of Par- liament tried in 1760 to introduce a militia bill, only to prompt King George III to comment derisively, "Pray, throw it out." To Scottish militia advo- cates, this rejection was more than a political slight: it was a violation of the constitutional relationship established when the Act of Union created two coequal sovereignties. Insisting that "'the established constitution of Scotland with regard to arms' continued 'unaltered to this day,"' militia proponents demanded the constitutional right of the Scots to bear arms in their own militia. To Alexander Carlyle, "this constitutional law" must pass. "What have we done," he asked, "to forfeit our rights as Britons, even for a single hour?" Calling for "the full completion of the union," he contin- ued, "Happy we should be, if there were no bar in the way to prevent the immediate extension of every constitutional law in this part of the king- dom! Thrice happy, if possessing every privilege of Britons, we knew the value of freedom, the greatest of human blessings, and felt that quiet sense of liberty, which animates our countrymen beyond the Tweed." The eco- nomic benefits of union had been great, but the loss of the militia revealed that Scotland's numerical inferiority in Parliament would entail humiliat- ing political inequality and the inability to protect its constitutional rights. As the militia bill wavered in the Commons, Carlyle ruefully remarked"that if the militia-bill, now brought into parliament, does not pass, it had been as good for Scotland that there had been no union." Their efforts availed nothing, and George III had no need to use the royal veto for the same purpose Queen Anne had used it a year after the Act of Union, in 1708. The bill failed miserably in Parliament.43 When the Scots demanded a corps that would serve the same purposes as that of England, they sought the extension of the English Militia Act of 1757, whose preamble set out its purpose: "Whereas a well ordered and 42. Gould,Persistence, 72-105. Parliament 1759hadto respond the "littleprogress" in to madein recruiting some counties(32 Geo. II, c. 20 [1759]). A yearlater,Parliament in was forcedto act whenrecruitment "suspended" certaincountiesowing to a lackof those was in "qualified willing to acceptcommissions"(33 Geo. II, c. 20 [1760]). Not all Scots fa- and voredthe militia,andmany-especially the poor-resented the possibilityof enforcedser- vice; forthe dissenters,see Gould,Persistence,95-96. Nevertheless, demand a Scot- the for tish militia enjoyed broadsupportamong Scots. Brown,History of Scotland,3: 341-42, this as describes support existingdespitelingering fearsthata Scottishmilitiamightbe turned to Jacobitepurposes. 43. Robertson, Militia Issue, 143, 157, 108-12. Western,EnglishMilitia, 167. Carlyle, Scots Militia, 19, 29, 30-31, 36. See also "Abstract a plan for a militia for Scotland," of Edinburgh Chronicle,March17 to 19, 1760, at 9.
  16. 16. The Second Amendment: Missing TransatlanticContext A 133 well-disciplined militia is essentially necessary to the safety, peace and prosperity of this kingdom. .. ." Militia advocates complained loudly that "the highest privilege of Britons" was to bear arms, and they were being stripped of an essential guarantee of their liberty. "It is by arms alone," wrote one Scottish patriot, "thatwe can preserve to ourselves a name among nations." It was also through arms alone that a civic spirit could be main- tained to preserve Scottish liberty in an age of ever-increasing luxury and ease, for, as Adam Ferguson explained, "A people who are disarmed in compliance with this fatal refinement, have rested their safety on the plead- ings of reason and justice at the tribunal of ambition and force."44 The preamble to the Militia Act was not mere window dressing, but a statement of purpose and a legislative command that its meaning be fol- lowed. As Parliament failed to maintain even the English militia, its pro- ponents took up the argument that its statutory language must be honored. Indeed, William Thornton urged the House of Commons in 1751, with the English militia neglected and ineffectual, "Let us no longer acknowledge the importance of a militia in the preamble of many of our statutes, yet render this very militia ineffectual by suffering such destructive clauses to remain, as will reduce the statute itself to a mere form of words, and a dead letter, to the astonishment of other nations, and the disgrace of our own." Thornton called on Parliament to "repeal all the present laws con- cerning the militia." In their place-and in place of "a mercenary army, that has no motive to defend us, but its pay, and no concern for our liber- ties"-he urged, "Let us now establish our safety upon a firm foundation, by passing such a law as will furnish this country with a militia equally effective, more easily raised, and maintained at a less expense than that of any other nation of the world. .. ." Thornton, like other advocates of a reformed English militia, saw such a force as a guarantee against what "happened in the year 1745," when Jacobite rebels had embarrassed Ed- inburgh and London.45 Anonymously, Adam Ferguson (or perhaps David Hume) lampooned the way English "John Bull" had left his Scottish "Sister Peg" disarmed and continuing,"andwhereasthe laws now in being for the 44. 30 Geo. II, c. 25, Preamble, regulation the militia are defectiveand ineffectual... ." Robertson, of Militia Issue, 100- 101. AdamFerguson,An Essay on the Historyof Civil Society,ed. DuncanForbes(1767; reprintEdinburgh: Edinburgh UniversityPress, 1966), 271. The importanceof the civic humanisttraditionof virtuein the militia cause is the subjectof Robertson,Militia Issue. Additional discussioncan be foundin Richard Sher,"Adam B. Ferguson,AdamSmith,and the Problemof NationalDefense,"Journal of Modern History61 (1989): 242-43. 45. Citedby Burgh,PoliticalDisquisitions,2: 419-21. Thornton introduced militiabill a in 1752andofferedvigoroussupport it in his pamphlet, Counterpoise, being Thoughts for The on a Militia and Standing Army (London,1752).
  17. 17. 134 LawandHistoryReview, Spring2004 helpless.Appealingto Johnand"Mrs.Bull,"Peg bemoanedthe declineof Scottishautonomyand sibling equality: Youused to call me proud.I wish I may not haveerredon the otherextreme. When you cease to be proud,I shall not esteem my brotherthe more.But whatever I weaknesses mayhave,howcouldyoufora moment think re- of ducingme to the necessityof askingas a favour,whatis the birth-right all of mankind,libertyto defendmyself? I was possessed of this liberty,beforeI entrusted affairsto the management yourservants....It neveroccurred my of to me,thatyoumight resume yourself, perhaps it offering to me.46 without it For the Scots, left out and looking southwardwith equal measureof jealousy and suspicion,theirexclusion deniedthem a constitutional right they hadexpectedin agreeingto the Treatyof Union.Now, Parliament had deniedthatright.Fifteenyearshadpassedsincethe "Forty-Five," arbitrarily and owing to steps taken"to extinguishevery sparkof disaffectionin the northern counties,"Scots were entrusted with arms andexpectedto serve loyally abroad defenseof Britain,butnot at home.Pro-militia in pamphle- teer George Dempster wrote that Scots bore "reminding... of the late conductof the government towardsthe inhabitants the disarmed of coun- ties."The "continuance an invidiousdistinction" not bearingarmsin of of a Scottishmilitia must end. "WhatScotchmanwould consentto a partial militia,"he asked, referringto the service of Scots in British wars, "by whichthosebravemen who havebeen so successfullyemployedin defend- ing us, are denied armsfor their own defence?"With war ragingagainst France,Scotlandlackedthe meansto defenditself as invasionloomed.But the otherlessonof 1745-the threat internal of insurrection-alsoremained a sourceof the pro-militia campaign. AdamFergusonraisedthe specterof anotherrising like thatof 1745 when he observedthat with no militiain Scotland,"a few Bandittifrom the Mountains, trainedby their Situation to a warlikeDisposition, might over-runthe Country,and, in a Critical Time, give the Law to this Nation."47 A Scottishmilitiaact remained patriotic a cause fromthe 1750sthrough the 1790s, when the dire pressuresof the NapoleonicWarsfinallyover- came Englishresistanceandled to the creationof a Scottishmilitia.48Even 46. The History of the Proceedings in the Case of Margaret, Commonly called Peg, only lawfulSisterto JohnBull, Esq. (London,1760), 79. Richard Sherconvincingly B. disputes Hume's authorship in Philosophical Books, 24 (1983): 85-91. 47. [George Dempster,] Reasons for Extending the Militia Acts to the Disarmed Coun- ties of Scotland (Edinburgh, 1760), 11, 16, 18, 20. Adam Ferguson, Reflections Previous to the Establishment of a Militia (1756), cited by Richard B. Sher, Church and University in the Scottish Enlightenment: The Moderate Literati of Edinburgh (Princeton: Princeton Uni- versityPress, 1985), 221. 48. J. R. Western,"TheFormation the ScottishMilitia in 1797,"ScottishHistorical of Review34 (1955): 1-18. 37 Geo. III,c. 103 (1796). Thepreamble this actreads,"Whereas to
  18. 18. The Second Amendment: Missing TransatlanticContext A 135 as the newly independentstates acrossthe Atlanticwere workingto cre- ate structures governmentthat would embody rights and protecttheir of liberties,therefore,Scots were still campaigningfor a bill thatwould ex- tendandguarantee themthe rightto beararmsin militiaservice.As would laterbe the case in the newAmerican states,it was a commonplace Scot- in land to declarethat"[a]militiais the naturalstrengthof a free people,"or to describeit as "the "natural bulwark" a nation.49 influencewas of The more thanrhetorical,as important thatmight be. as like "Influence," "context," be one of the most difficult factors to can establishin history,especially as a causativelink between ideas and ac- tions, andwe mustbe carefulto seek deep and underlyingelementsrather than superficialconnections.Reappraising legacy in Americaof the the debates over the union of Scotlandand Englandin the early eighteenth century,Ned Landsman concedes thatit "appears, the surfaceat least, on to havebeen practicallynil."He cautions,however,thatthe important his- torical question is not one of "immediateramifications," ratherthe but demonstrably more significantfact thatAmericanshad to come to terms with being "provinces an enlargedUnitedKingdom." questionwas of The not a simplisticone of obvious cause and effect, as JohnPocock advises: "TheAmericanRevolutionis not causallya consequenceof the Union of EnglandandScotland,butit is a consequenceof a politicallogic contained withinit."50This "political logic"shaped American debatesandraisedmany of the same concerns.The discursiveand rhetoricalsimilaritiescannotbe ignored,because both had sufferedsimilargrievancesand were respond- ing with similarsolutions. Thesesimilarities-the sharedsuspicionsof provincial Britons--emerge from the continuingScottish skepticismabout how a militia law would operatein actualpractice.The disputeover retainingcontroland respon- sibility in militia affairsgeneratedintractable controversy.Traditionally, countylieutenants raisedthe militias,butthe abolitionof the ScottishPrivy it hasbeenfound,fromexperience, thewell ordering disciplining militia that and the in Englandand Wales, has essentially contributed the safety of the united kingdom;and to whereasit wouldfurther contribute the samepurpose,andtendto repelanyattempt to which the enemies of this countrymay maketo effect a descent upon this kingdom,if a well or- deredanddisciplinedmilitiawereestablished thatpartof the unitedkingdomcalledScot- in land;andwhereas lawsin beingfortheregulation thefencible the of men,or militia, in Scotland,are defectiveandineffectual... ." 49. Burgh,PoliticalDisquisitions,2: 395. Edinburgh March31-April2, 1760, Chronicle, 60, col. 3, reprinting article an fromtheWestminster Journal March 1760. of 22, 50. Ned Landsman, "TheLegacyof BritishUnionfor the NorthAmericanColonies:Pro- vincialElites andthe Problem Imperial of Union,"in A Union Empire: PoliticalThought for andtheBritishUnionof 1707,ed. JohnRobertson (Cambridge: University Cambridge Press), 297. J. G. A. Pocock, "Empire, State, and Confederation: Warof AmericanIndepen- The dence as a Crisis in MultipleMonarchy," ibid., 338. in
  19. 19. 136 Law and History Review, Spring 2004 Councilin 1708 left a void in the chainof constitutional authority which by lieutenancieswere created;not even the Crown,legal opinionheld, could raise or armmilitiaswithoutsuch officials. GeorgeDempsteremphasized the availability "manygentlemen undoubted of of attachment thepresent to government, who are both qualifiedand willing to act as militia-officers," and whose presence would add "authorityand weight to the cause of Whiggism."Officialsin Londondisagreed.In the face of Parliament's re- fusal to yield control to local authority, Burgh voiced the fears of many Scots when he linked controlover appointments fundingand training. to WhenParliament madecentralized controlfromLondona conditionfor a Scottish militia in 1779 and 1780, the Scots refusedto supportany such plans.The EnglishMilitiaAct specifiedroyal authority, as Burghhad but warned, this "placesit, as everything else is, too muchunderthe powerof the court."Thoughpreferred the English, centralizedcontrolalarmed by the Scots. BurghquotedAndrewFletcherof Saltoun,a vocal Scottishanti- Unionist, who had insisted at Scotland'slast parliament 1706-7: "The in essentialqualityof a militiaconsistentwith freedom,is, Thatthe officers be named,andpreferred, they,andthe soldiersmaintained, by the and not prince but by the people, who send them out."Englishrefusalto yield on the appointment officershelpeddoom any potentialbill.51 of The debateover local controlepitomizedthe constitutional between gulf Scotlandand England.To the English, accordingto Eliga Gould,Crown control"represented substantial a step towardintegrating militiainto the the regularforces of the Crown"and increasingHanoverian power.The Scots long had recognizedthe dangerof centralizedmilitia control.An- drewFletcher,a leadingopponentof the Union, had warneda half centu- ry earlierthatScotlandwouldbe treatedas a "conquered province" unless barredby express curbs on royal power within a constitutional structure thatJohnRobertsondescribesas "anequal or confederalunion"("a sort of UnitedProvincesof GreatBritain"). Fletcher proposedat Scotland's last parliament before Union thatit pass an "Actfor the securityof the king- dom" specifying twelve "Limitations." Fourof these mentionedmilitary MilitiaIssue,52. Rosalind 51. Robertson, "TheGovernment theHighlands, Mitchison, and 1701-1745," in Scotland in the Age of Improvement. Essays in Scottish History in the Eigh- teenthCentury, N. T. Phillipsonand RosalindMitchison(Edinburgh: ed. UniversityPress, 40. would [1970]1996), TheCrown lieutenants thereconstituted appoint in mili- Scottish tia. Dempster,Reasonsfor Extending, 15.Antimilitia 9, legislatorsobjectedto local control even over the recommendations HenryDundas,the powerfulsolicitorgeneralof Scot- of land,dubbed"Henry Ninth,"thata Scottish"melletia" the wouldhelp stabilizesocietyand end the massiveemigrationof Scots. Bernard Bailyn, Voyagers the West. Passage in to A the Peopling of Americaon the Eve of the Revolution(New York:Knopf, 1986), 46-51. Burgh,Political Disquisitions,2: 404, 399-400 (quotingFletcher).Robertson, MilitiaIs- sue, 136-37.
  20. 20. The Second Amendment: Missing TransatlanticContext A 137 affairs, including a denial of Crown authority to maintain a standing army or make peace and war except by "consent of parliament," or to grant any "places and offices." One limitation is of particular importance in the present examination of the right to keep and bear arms: "That all fencible men of the nation, betwixt sixty and sixteen, be with all diligence possi- ble armed with bayonets, and firelocks all of a caliber, and continue always provided in such arms with ammunition suitable."52 Such a militia generated little, if any, serious support, but Fletcher's demand merits serious attention because it raised an issue fraught with social, political, and constitutional implications: How inclusive should militia membership be? Because Fletcher's plan on its surface arguably it appearsto supporta universal individual right to bear arms,53 merits closer contextual study than it has received. Fletcher's militia was to serve as a bulwark of Scottish liberty, for "[a] good militia ... is the chief part of the constitution of any free government" and "will always preserve the pub- lick liberty."But an armed citizenry, by itself, did not constitute the "good militia" called for. Indeed, it had to be well regulated. Fletcher continued, "[I]f the militia be not upon the right foot, the liberty of the people must perish." For this reason, membership in the arms-bearing community re- quired submission to a grueling regimen of basic training in militia "camps," so that the militia could be placed "upon the right foot." There, young men would "be taught the use of all sorts of arms," adhere to a strict diet, and learn "all christian and moral duties, chiefly to humility, modes- ty, and the pardon of private injuries," all enforced by "severe and rigor- ous orders,"including punishments "much more rigorous than those inflict- ed for the same crimes by the law of the land." "Such a camp," Fletcher explained, "would be as great a school of virtue as of military discipline. .." After one or two years of training, militiamen would meet fifty times a year. Fletcher, therefore, saw the militia as but one part of a comprehen- sive Scottish nationalist revival, and he remained wary of those who could not be entrusted with the responsibilities of citizenship. To make an exam- ple of the most incorrigible vagabonds, in fact, he called for sending sev- eral hundred "of those villains" to serve in Venetian galleys. Even with the worst miscreants removed, he lamented the fact that half of Scotland was controlled by men who "in every thing are more contemptible than the vilest 52. Eliga H. Gould,"ToStrengthen King's Hands:DynasticLegitimacy, the MilitiaRe- form and the Idea of NationalUnity, 1745-1760,"HistoricalJournal34 (1991): 329-48. "Actfor the Securityof the Kingdom," AndrewFletcher,Political Works, JohnRob- in ed. ertson (Cambridge: Cambridge UniversityPress, 1997), 139. Robertsondefines "fencible men"as "thosecapableof bearingarms"(ibid., 139n). 53. As argued, example,by StephenP.Halbrook, for ThatEveryManBe Armed:TheEvo- lutionofa ConstitutionalRight,2nded. (Oakland,Cal.:TheIndependent 1994),47. Institute,
  21. 21. 138 Law and History Review, Spring 2004 slaves, except thatthey always carryarms,becausefor the most partthey live upon robbery."54 for Support a Scottishmilitiathuscouldnot escapethe problem defin- of ing a practicalpublic policy by which membershipshould be limited.55 Turningthe tables on the Stuartsfor "causingseveralGood Subjects,be- ing Protestants, be Disarmedat the same time, when Papistswereboth to Armed and Imployed contraryto Law,"the English Bill of Rights had specifiedthat only those "Subjectswhich are protestants may haveArms for theirDefence suitableto the Condition,andas allowedby law."56 Lim- iting militia membershipto Protestantswith a certainlevel of property reflectedhatredof Catholicsanddoubtsabouttheirloyaltyto the Revolu- tionary settlement,but indicated,too, a distrustof the lowest ordersof society.Indeed,therewere groundsfor the lattersuspicion:the MilitiaAct of 1757 had ignited riots among the English poor, who saw service as a hardship as exploitation.The act did not proposeuniversalservicein and any case, as it providedfor substitutes be engagedandcappedthe num- to ber serving.57 Burgh'sopinionon the composition the militiareflectedthis tradition. of He addressed PoliticalDisquisitions the independent of thePeo- his "to Part ple of Great-Britain, Ireland,andthe Colonies,"andin themhe articulated a constitutional for argument collectiveequalitywithinthe Empirethatin- cluded the right of the Scots to organize and serve in their own militia. Scotlandmustbe allowedits own militia,a militiacomposedof as broada segmentof the population servedin England.Burghdemanded rights as the to which all Britonswere entitled."ForeveryBritonis bornwith the heart 54. AndrewFletcher,"ADiscourseof Government Withrelationto Militia's"[1698], in Political Works, Robertson,24-26. Fletcher,"TwoDiscoursesConcerningthe Affairs ed. of Scotland;Writtenin the Year1698,"ibid., 68-69. 55. Adam Smith, for example,appliedhis belief in the superiority the specialization of of laborto arguethat"theprogressof manufactures, the improvement theartof war" and in madeuniversalmilitiaserviceharmfulto the economy andproduced militaryforce infe- a rior to a standing army (An Inquiry into the Nature and Causes of the Wealth of Nations, ed. R. H. CampbellandAndrewS. Skinner, vols. [Indianapolis: 2 LibertyFund,1981], 2: 689-708). 56. "TheDeclaration the LordsSpiritualand Temporal, CommonsAssembledat of and Westrminster,"reprinted in Declaring Rights. A Brief History with Documents, ed. Jack N. Rakove(Boston:BedfordBooks, 1998), 41-45, with pertinent clauses at 42, 43. Because the Declaration no constitutional had force,Parliament to enactits provisionsintolaw, had and did so; it did not alterthe languagecited here. 1 Wm. and Mary,sess. 2, c. 2 (1689). Fearof arms-bearing Catholicsalso infectedthe debateon an Irishmilitia,wherethe inclu- sion of Catholics was so dreadedthat not until 1793 was a bill approvedto permitthis. ThomasBartlett, Endto MoralEconomy: "An The IrishMilitiaDisturbances 1793," of Past and Present 99 (1988): 41-64. 57. 30 Geo. II, c. 25, secs. xvi, xix.
  22. 22. The Second Amendment: Missing TransatlanticContext A 139 of a soldieranda sailorin him,"Burghasserted; "andwantsbutlittle train- ing to be equal on eitherelement,to any veteranof any country." Though not callingfor a universal militiacomposedof all able-bodied men, Burgh emphasizedthe rightof a politicalcommunityto equalitywithinthe con- stitutional structure therightof the subjectto participate and fully.ToBurgh, "a militiais the only naturaldefence of a free countryboth from invasion and tyranny," it required but capablewidespread participation it were to if be trulyso. In his oppositionto a small, select militia, Burghwas adding his voice to a call madeby otherwriterswith broadAmericanreadership, quoting at length from the work of AndrewFletcher,whose militia plan includedScotlandand called for organizedmilitia service and trainingto be as broadas policy allowed:"Mr. Fletchergives the plan for a militiafor Britain..... Thatevery youthof everyrankshouldspendone or two years in the camp,at his coming of age, andperformmilitaryexercise once ev- ery week afterwards." Despite Fletcher'sreferenceto "everyyouth of ev- ery rank,"Burgh wouldlimit serviceto "allmen of property," a "militia for consisting of any othersthanthe men of propertyin a countryis no militia; but a mungrelarmy." this reason,Burghcould stop shortof what we For today wouldacknowledgeas trulyuniversalservice and still state,without contradicting himself, "Thereis no law againsta free subject'sacquiring any laudableaccomplishment." Onlythose capableof being entrusted with the dutiesof citizenshipwere entitledto the civic rightto participate, but all such men mustbe allowedto do so. 58 II. The Scottish Example and the Shared British Tradition in North America As one of the many exemplaryhistoriesavailablein the political culture of the eighteenthcentury,Scotland'sconstitutionalhistoryand its strug- gle over a militia providedthe framersof the Constitutionand Second Amendmentwith a cautionarylegacy that appealed to them because it addressed manyof the sameissues. Reactingto sharedconcerns,theycame up with similar-and similarlyworded-responses. As framed,therefore, the SecondAmendment defies easy classificationin suchtwenty-first cen- tury terms as "individual" "collective."The differencesbetween such or dichotomiesandthe variousways thateighteenth-century rightswere con- ceived, explains RichardPrimus,"suggestthat the categoriesof modem analyticrightsphilosophydo not producean adequateframework his- for toricallyreconstructingconceptions of rightsat the Founding."Grounding 58. Burgh, Political Disquisitions, 3: 336, 360-61; 2:391, 401, 402.
  23. 23. 140 Law and History Review, Spring 2004 eighteenth-century rights in the felt necessities of their time, he prefers to describe them as "oppositional and specific," a concept that suggests that "the most prominent rights at the Founding were substantially conditioned by contemporary opposition to specific British practices."59 This formula- tion is especially apt for appreciating the role of the Scottish example in the framing of the Second Amendment. The British government fed the shared fear of a standing army when its troops began efforts to disarm the Massachusettsmilitias. Almost six months before the more celebrated raids on Lexington and Concord, British regu- lars in September 1774 seized arms stored by the province in Cambridgeand Charlestown.Though thousands of local militia gatheredin Cambridge,New England's first militia resistance took place in New Hampshire.Angered by news that the Crown had barredimportsof arms to the province, militia offic- er John Sullivan led local men in seizing British arms stored at Fort William and Mary at the mouth of the Piscataqua River on December 14.60 Two weeks after Sullivan's raid, JohnAdams wrote to James Burgh thank- ing him for the Political Disquisitions the Scot had sent him and praising its timeliness. "I cannot but think those Disquisitions the best service that a citizen could render to his country at this great and dangerous crisis," he wrote. Adams referred explicitly to the Boston Massacre in 1770 and im- plicitly to the present troubles, claiming that General Sir Thomas Gage "and all the regiments" then occupying Boston could not crush New England. After speaking of the nation's resolve to sacrifice its blood, he told Burgh, "Americawill never submit to the claims of parliament and administration. New England alone has two hundred thousand fighting men, and all in a militia, established by law; not exact soldiers, but all used to arms."61 Scotland's experience at the hands of British troops was not far from the minds of Americans resisting Britain in the 1770s. Denied their own mili- tia, Scots had been degraded and forced to do the military service of oth- ers, and became numbered with the hated "Scotch and foreign mercenar- ies" that Jefferson denounced in drafting the Declaration of Independence, though he removed the reference when it "excited the ire of a gentleman or two of that country."62 John Sullivan, appointed a major-general in the 59. Richard Primus, The American Idea of Rights (Cambridge: Cambridge University Press, 1999), 85, 97, 102-3. 60. Charles P. Whittemore, A General of the Revolution: John Sullivan of New Hampshire (New York:ColumbiaUniversityPress, 1961), 13. 61. Adamsto Burgh,December28, 1774, Works, 351-52. 9: to 62. Jefferson Robert Walsh,December 1818,TheWorks Thomas 4, of Jefferson, Paul ed. LeicesterFord, 12 vols. (New York:G. P. Putnam's Sons, 1904-5), 10: 119-20, wherehe mistakenly CarlL. Becker,TheDec- recallswriting"Scotchandotherforeignauxiliaries." laration of Independence. A Study of the History of Political Ideas (New York: Harcourt, Brace, 1922), 172. Hook, Scotland and America, 71n., posits Witherspoon's influence.
  24. 24. The Second Amendment: Missing TransatlanticContext A 141 Continental Army, joined the list of American "Encouragers" to Burgh's Philadelphia edition and provided a personal testimonial in the advertis- ing circulated to promote it. In Boston, Josiah Quincy, Jr., appreciated that common struggle when he assailed the Boston Port Bill in 1774, praising "that prince of historians, Dr. Robertson" and citing his History of Scot- land in arguing for "a well-disciplined militia." Robertson's History of Scotland had fueled national pride in Scotland and had generated support for the militia there, and Quincy drew on a shared British experience when he asked, "Who would be surprised that princes and their subalterns dis- courage a martial spirit among the people, and endeavor to render useless and contemptible the militia, when this institution is the natural strength, and only stable safeguard, of a free country?" James Madison requested that the work be included among works to be purchased for the Confeder- ation Congress in 1783. Thomas Jefferson had read Robertson's History of Scotland as a young man practicing law and continued to recommend him in his old age. As with other works that exposed human evil, Jeffer- son appreciated the fact that "when we see or read of any atrocious deed, we are disgusted with it's deformity and conceive an abhorrence of vice."63 Americans did not forget either history or experience after the war, nor in the effort to establish a national government. Looking back on England's efforts to subjugateMassachusetts with regulartroops before Independence, Elbridge Gerry recalled that Parliament had worked to weaken the colo- ny's militias. In debate on what became the Second Amendment he remind- ed Congress, Whenevergovernment meanto invadethe rightsand libertiesof the people, theyalwaysattempt to destroythe militia,in orderto raisean armyupontheir ruins.This was actuallydone by GreatBritainat the commencement the of late revolution.They used every means in theirpower to preventthe estab- lishmentof an effective militiato the eastward. The assemblyof Massachu- setts, seeing the rapidprogressthatadministration were making,endeavored to counteract them by the organization the militia, but they were always of defeatedby the influenceof the crown.64 63. Stewart Brown,"William J. Robertson(1721-1793) andthe ScottishEnlightenment," in William Robertson the Expansionof Empire,ed. StewartJ. Brown(NewYork:Cam- and bridgeUniversityPress, 1997), 20-21. JosiahQuincy,Jr.,"Observations the Act of Par- on liamentCommonlyCalledthe BostonPortBill; withThoughtson Civil Society andStand- ing Armies"[Boston, 1774],Memoirof the Life of Josiah Quincy,Junior,of Massachusetts Bay: 1744-1775, ed. JosiahQuincy,3rded., ed. Eliza SusanQuincy(Boston:Little,Brown, 1875), 303, 338. Journalsof the Continental Congress,1774-1789 editedfrom the Origi- ed. nal Records, Worthington Chauncey Print- Government Fordet al., 34 vols. (Washington: ing Office, 1904-37), 24: 83. Jeffersonto RobertSkipwith,August 3, 1771, in ThePapers of Thomas Jefferson, 1: 76-81; Jefferson to John Minor, Works,August 30, 1814, 11: 424. 64. Creating Bill of Rights:TheDocumentary the Recordfrom theFirstFederalCongress, JohnsHopkinsUniversityPress, 1991), 182. ed. Helen E. Veit et al. (Baltimore:
  25. 25. 142 Spring2004 LawandHistoryReview, Gerry'sconcernsechoed the most prominent fear aboutthe militiasin the stateratifyingconventionsand in Congress:namely,who wouldstaff, take responsibility andcontrolthe statemilitias.It reflectedwhatDon for, Higginbotham has identifiedas a powerfulconcerncentralto the histori- cal changes that overtook the new nation. Higginbotham,the dean of AmericanRevolutionary Warmilitaryhistorians,has shown how impor- tantit is to recognize,among otherhistoricaldevelopmentsafter 1783, "the shift from the states' total controlof their militias to the sharingof thatauthority underthe Constitution, how disturbing development this was to the Antifederalists, [and]how JamesMadisondealtwith Antifederalist concernsin the SecondAmendment. "65 .... The end of the war,thatis, posed new questionson how to maintain the continuedvitality of the state militias as meaningfulfactors in a federal system.JohnSullivan,who became"president" (governor) New Hamp- of shire afterthe war,remainedcommittedto the notion of a citizen militia and servedas its commander, touringthe state and generatingsupport for it. The leaderof New England'sfirstdefenseof local militiasin 1774,with independence saw the keeping andbearingof armsas necessaryto the he effectivenessof a militiaandsupported statelaw providingarmsto all the membersas guaranteeing "wellregulated a militia."Sullivanknewthatthe collective power of the militia dependedon individualexertion:"[W]ere my talentseven equal to those of a Frederick," addressedthe freemen he of New Hampshire 1785, "I could do but little towardsforminga well in regulatedmilitia,withoutthe countenance aid of the people at large." and Bearing armswas an individualact to be exercisedin the state'swell-or- ganized and disciplinedmilitias, and he repeatedlylinked the two in his speeches.Bearingarmswithoutthe regulation disciplinethatcamewith and grouppractice, he emphasized, failedto servethe purposeof protecting the gains of the Revolution: "Wehave alreadybravelypurchased Libertyand Independence,and now make part of an empire where freedom reigns without controul:but what will our late strugglesavail, if we sufferthe militaryskill which we have acquired,to expire?"Sullivanwent so far as to suggestthatschoolboys be instructed "theprofessionof arms," in which shouldbe "taught the purposeof nationaldefence and for the security for of dear-bought freedom."66 65. Higginbotham continueshis observation the subjectalso shows"finally, that how the issue was gradually resolvedin the firsthalf of the nineteenth thoughthe present century," essay stops shortof thatquestion.Don Higginbotham, "TheFederalized MilitiaDebate:A NeglectedAspectof SecondAmendment Scholarship," and 3rd William MaryQuarterly, ser., 55 (1998): 39-58, with quotation 40. at 66. Letters and Papers of Major-General John Sullivan, Continental Army, ed. Otis G. Hammond, HistoricalCollections,13-15, 3 vols. (Concord,1930-39), 3: New Hampshire 385-86, 407.

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