Laws about gun ownership in early America

The Volokh Conspiracy ^ | December 9, 2011 | David Kopel

[neverdem]

Regarding Eugene Volokh’s post below about an NYU L. Rev. article, “The People” of the Second Amendment: Citizenship and the Right To Bear Arms. I just scanned the article, and there appears to be only a single footnote which directly cites any state statutes from before 1800. Note 125, accurately cites standard statutory compilations from Massachusetts and Connecticut for laws against selling firearms to Indians. Although the author is apparently unaware that by 1661 (Connecticut) and 1688 (Massachusetts) the laws were changed to allow gun sales (and even gun carrying in towns) by friendly Indians. The article suffers very severely from its near-exclusive reliance on secondary sources for the pre-1800 period, especially since some of those sources are highly tendentious.

To summarize the information from Chapter 3 of my forthcoming textbook Firearms Law and the Second Amendment: Regulation, Rights, and Policy (Aspen Publishers, available in late Jan. 2012) regarding American law pre-1800:

Women: No restrictions. Of course they did not serve in the militia. Laws requiring “householders” (whether or not they were in the militia) to have arms were common, and these usually included a woman who was the head of the house (e.g., a widow).

Free blacks: Some states had no restrictions, some states had bans on their owning guns. Free blacks served in some state militia, not in some other states, and in some states policies changed depending on military necessity. They were excluded from the federal militia by the Second Militia Act of 1792.

Slaves: Several states banned gun ownership, or allowed ownership only with the master’s permission.

Poor whites: To claim that they were excluded from gun ownership or from militia service is absurd. There were absolutely no property or wealth restrictions on gun ownership, nor on service in the militia. To the contrary, many states had programs to supply poor people with guns (“public arms”) for militia service, if they could not afford their own. Further, the laws requiring householders to be armed often required that the household provide arms to adult male servants. State laws also required that when an indentured servant finished his or her term of service, the master must provide the former servant with “freedom dues” so that the servant could begin independent life. The freedom dues were specified set of goods; in Maryland, Virginia, and North Carolina, freedom dues for male servants included a firearm. In short, the state laws of the 17th and 18th centuries in America were generally prescriptive about gun ownership by poor people, and the prescriptions were to put guns into the hands of the poor.

The author of the NYU article asserts that “arms bearing was considered congruent to voting, holding public office, or serving on juries.” That’s incorrect for “bearing” in the sense of carrying a gun for personal use, since there were no wealth, sex, age, or citizenship restrictions on carrying. And the claim is even more incorrect if “bearing” is meant in the restrictive sense of “bearing for militia service.” Militia laws always mandated service by all males (except, sometimes Blacks or Indians) in a certain age range. Period. The only exemptions were for specified professions (e.g., clergy). Militia duty was generally required starting at age 16 or 18 (which was before voting eligibility). Indeed, during the end of the 18th century and the early 19th century, one of the standard,successful, arguments for broadening the franchise by eliminating the property requirement for voting was that anyone who served in the militia deserved to vote. E.g., “Let every man who fights or pays, exercise his just and equal right in their election.” Thomas Jefferson letter to Samuel Kercheval, July 12, 1816.

Catholics: In Maryland, temporarily barred from gun ownership during the French & Indian War.

Dissenters: During the Revolution, there were plenty of instances of confiscating guns (sometimes with compensation) for militia use from people who would not take a loyalty oath to the new nation, or who would not serve in the militia (this included plenty of religious pacifists in Pennsylvania). During the early theocratic days in Massachusetts, 75 supporters of the religious dissident Anne Hutchinson were disarmed.

The author’s thesis is that illegal aliens and legal non-resident aliens should be allowed to own guns. Part of his argument is to construct and then criticize the supposedly historical “gendered,and class-stratified understanding of persons permitted to own guns.” The author could have made a stronger historical argument for his position if he had accurately described the gun laws of 17th and 18th century America.

[neverdem]

Clayton E. Cramer has a number of comments at the source. Kopel and Volokh have written extensively about the Second Amendment.

[JRandomFreeper]

highly tendentious.

Two clues that an argument is going to be very captivating or very boring are "tendentious" in the first paragraph or "The Talmud says: ..."

I've never found a middle ground.

With either signal, you know it's going to be very good, or evening reading when you can't get to sleep without literary help.

I rate this article as interesting.

/johnny

[SunkenCiv]

GGG managers are SunkenCiv, StayAt HomeMother & Ernest_at_the_Beach	join list or digest view topics view or post blog bookmark post a topic subscribe
Thanks neverdem. Just adding to the catalog, not sending a general distribution. To all -- please ping me to other topics which are appropriate for the GGG list.

[marktwain]

Thank you for posting this interesting article.

[GeronL]

very interesting.

Now who has the Bang list?

[lentulusgracchus]

I recently read Richard Hofstadter's America at 1750, which was a posthumous publication completed by Hofstadter's widow and his colleagues.

The remarks about "freedom dues" are probably taken from Hofstadter or his source and are correct: time-served indentured servants, whether black or white, received these "dues", which included a firelock -- a matter in which the colonial authorities will have been interested to see to it that the newly-free man was armed.

Most restrictive firearms laws in colonial America, Wayne LaPierre tells us, were actually "black code" laws, which were not confined to the South; Illinois had a strong "black code" of its own which basically forbade blacks the right to reside in Illinois. Violations were cured by arresting the "trespasser" and "selling him south", i.e. into slavery.

[bamahead]

Very interesting post. Thanks neverdem!



Libertarian ping! Click here to get added or here to be removed or post a message here!

[neverdem]

Now who has the Bang list?

Joe Brower has the original. Using the keyword banglist makes a chronological record of when that keyword was entered.

[Ken H]

A view from 1829:

______________________________________

The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.

The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.

William Rawle, A View of the Constitution of the United States 125--26 1829 (2d ed.)

http://press-pubs.uchicago.edu/founders/documents/amendIIs9.html

[neverdem]

Thanks for the citation.

[Kenny Bunk]

flagitious

I shall be on the look-out for all flagitious activities from now on!

dictionary.reference.com/browse/flagitious/fləˈdʒɪʃ əs/ Show Spelled[fluh-jish-uh s] Show IPA. adjective. 1. shamefully wicked, as persons, actions, or times. 2. heinous or flagrant, as a crime; infamous. ...

www.merriam-webster.com/word/word.php?date=Jun-13-2010Jun 13, 2010 – "Flagitious" derives from the Latin noun "flagitium," meaning "shameful thing," and is akin to the Latin noun "flagrum," meaning "whip." "Flagrum" ...

[Joe Brower]

As neverdem mentioned, I maintain a private RKBA ping-list of about 650 FReepers. If you want to be added, just let me know.

To pull up all threads that are taggged with the FR 'banglist' keyword, just use this link:

http://www.freerepublic.com/tag/banglist/index

[mainestategop]

BOOKMARK!!