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Early American Gun Regulation and the Second Amendment: A Closer Look at the Evidence

Published online by Cambridge University Press:  18 August 2010

Saul Cornell
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Extract

The scholarly debate over the meaning of the Second Amendment and the scope of gun regulation has been marred by ideological distortions. Michael Bellesiles, an ardent supporter of collective rights theory, argued that state control over weapons was virtually unlimited. Now Robert Churchill, a champion of individual rights theory, stakes out an equally bold position. In his view, a distinct and separate right to keep arms evolved under American law. According to this new variant of individual rights theory, the state might regulate bearing arms, but it was prohibited from regulating the right to keep arms.

Type
Forum: Comment
Information
Law and History Review , Volume 25 , Issue 1 , Spring 2007 , pp. 197 - 204
Copyright
Copyright © the Board of Trustees of the University of Illinois 2007

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References

1. Bellesiles, Michael A., “Gun Laws in Early America: The Regulation of Firearms Ownership, 1607–1794,” Law and History Review 16 (1998): 567–89.Google Scholar Churchill's primary goal appears to be giving academic legitimacy to the insurrectionary ideology of the modern militia movement; see Churchill, Robert H., “The Highest and Holiest Duty of Freemen”: Revolutionary Libertarianism in American History” (Ph.D. diss., Rutgers, 2001).Google Scholar For criticism of law office history on both sides of this debate, see Cornell, Saul, “Don't Know Much About History”: The Current Crisis in Second Amendment Scholarship,” Northern Kentucky Law Review 29 (2002): 657–81.Google Scholar Rather than seek a usable past, scholars interested in contemporary gun issues ought to focus their attention on policy questions and jurisprudential issues.

2. “Scribble Scrabble,” Cumberland Gazette, January 26, 1787Google Scholar; “Scribble-Scrabble,” ibid., December 8, 1786

3. For a good synthesis describing the importance of the common law to American legal thinking in the Founding era, see Kramer, Larry, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004).Google Scholar The notion of liberty articulated by Scribble Scrabble is consistent with the account of Reid, John Phillip, The Concept of Liberty in the Age of the American Revolution (Chicago: University of Chicago Press, 1988)Google Scholar.

4. Kates, Don B., “The Second Amendment and the Ideology of Self-Protection,” Constitutional Commentary 9 (1992): 87–104Google Scholar; Lund, Nelson, “The Second Amendment, Political Liberty, and the Right to Self-Preservation,” Alabama Law Review 39 (1987): 103–30.Google Scholar The distinction between the common law right of self-defense and the political right to have arms for common defense was central to Blackstone; on this point see Heyman, Steven J., “Natural Rights and the Second Amendment” Chicago Kent Law Review 76 (2000): 237–90Google Scholar.

5. Trial of Thomas Selfridge, Attorney at Law, Before the Hon. Isaac Parker, Esq, For Killing Charles Austin… (Boston, 1806), 41, 137, 128, 149.Google Scholar

6. Cornell, Saul and Dedino, Nathan, “A Well Regulated Right: The Early American Origins of Gun Control,” Fordham Law Review 73 (2004): 487–529.Google Scholar This perception may not have been accurate according to Randy Roth, whose forthcoming study of violence in early America will resolve this issue.

7. Aymette v. State, 21 Tenn (2 Hump) 154 (1840) at 159.Google Scholar

8. Ibid.

9. St. George Tucker Notebooks, Box 63, vol. iv, pp. 127–28, Tucker-Coleman Papers, Swem Library College of William, and Mary, ; St. George Tucker, Blackstone's Commentaries: with Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia …, 5 vols. (1803).Google Scholar For a detailed examination of the role of the Second Amendment in Tucker's evolving constitutional theory, see Cornell, Saul, “St. George Tucker and the Second Amendment: Original Understandings, and Modern Misunderstandings,” William and Mary Law Review 47 (2006): 1123–56Google Scholar.

10. Churchill's use of Tucker replicates the anachronistic readings of many legal scholars; see, for example, Barnett, Randy E., “Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?” Texas Law Review 83 (2004): 237–77Google Scholar; Kopel, David B., “The Second Amendment in the Nineteenth Century,” Brigham Young University Law Review 4 (1998): 1359–545Google Scholar; Barnett, Randy E. and Kates, D. B., “Under Fire: The New Consensus on the Second Amendment,” Emory Law Journal 45 (1996): 1139–259Google Scholar.

11. Tucker, St. George, A Dissertation on Slavery: With a Proposal for the Gradual Abolition of it, in the State of Virginia (1796)Google Scholar in Tucker, St. George, View of the Constitution, ed. Wilson, Clyde (Indianapolis: Liberty Fund, 1999), 408–9, 422, 441Google Scholar.

12. Cornell, Saul, “A New Paradigm for the Second Amendment,” Law and History Review 22 (2004): 161–67.CrossRefGoogle Scholar

13. Churchill's essay has convinced me that fowling pieces would probably have been included under the scope of constitutional protection. Hand guns, however, would not have enjoyed any constitutional protection.

14. Uviller, H. Richard and Merkel, William, The Militia and the Right to Arms; or; How the Second Amendment Fell Silent (Durham, N.C.: Duke University Press, 2002)Google Scholar and Konig, David, “The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of ‘the Right of the People to Keep and Bear Arms,’” Law and History Review 22 (2004): 119–59.Google Scholar For an exploration of the range and evolution of American thinking on the meaning of the right to bear arms, see Cornell, Saul, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (New York: Oxford University Press, 2006)Google Scholar.