work in progress.

Introduction

[Guns remain an enigmatic symbol in America society - an emblem of [liberty, independence, power, strength, masculinity, fear, oppression, conquest]. America's relationship with its guns today is a... How did it get to be that way?]

My research project is based on the simple inquiry: how were guns regulated in Colonial America? It is a question that is (relatively) easy to answer using primary sources; the who, what, where, when and how of early American gun regulation can be read right from the statutes. But the ease of the inquiry belies the magnitude of its implications. The Colonial statutes tell a story of fear and domination - a fragile and paranoid population of foreigners, trying desperately to exclude, suppress and subjugate every other group they encountered. Firearm regulation provides a clear example of the modalities of power and violence that enabled the colonialist project.

Why Virginia

The Militia

Lawes Divine, Morall and Martiall of the Colony of Virginea

Executed by King James I in 1606, the first charter of the Virginia colony reserved the territory reaching from modern day South Carolina to Canada -- "that part of America commonly called Virginia" -- to the dominion of the King, and granted land use rights to the colonists. The charter extended basic English common law, "all liberties, franchises and immunities within anie (sic) of our other dominions," to the residents of Virginia. (1) (2) It granted them the right to import armor, weapons and munitions to be used in defense of the colony, and empowered them to use force to expel any intruders or foreigners. (3) The first charter (and subsequent revisions) remained in force until it 1609, when it was incorporated into the first colony's first comprehensive set of laws.

The "Lawes Divine, Morall and Martiall of the Colony of Virginea Britannia" were issued to satisfy the shareholders of the Virginia Company as much as they were to govern the colony of Virginia. (4) The laws reflect the conditions of a harsh and disciplined lifestyle, of a colony struggling to survive. Resources were scarce; colonists could face death for bartering or trading with Indians, or for giving or selling any commodity to a mariner to be transported out of the country. (5) Comprising the vast majority of the statutes, the Martial Laws depict a strict, Spartan society in which a soldier would be "put to death with such Armes he carry" for a whole host of infractions -- from failing to report for marching duty, to losing one's arms in battle, to mutiny. (6) Drawing a sword within a town or garrison was punishable by the amputation of the right hand; firing a gun any place without order from a superior officer was punishable by death (7) It was forbidden for a man to "sell, give, imbezzell, or play away his Armes, or any part thereof, upon paine of death."(8) These early statutes reveal many of the major themes that will later dominate the laws of the Virginia Colony - strict and severe control of soldiers, a fear of Indians and foreigners, and the tight regulation of arms.

[*** How armed? "Hee shall not suffer in his Garrison any Souldier to enter into Guard, or to bee drawne out into the field without being armed according to the Marshals order, which is, that every shot shall either be furnished with a quilted coate of Canvas, a headpeece, and a sword, or else with a light Armor, and Bases quilted, with which hee shall be furnished: and every Targiteer with his Bases to the small of his legge, and his headpeece, sword and pistoll, or Scuppet provided for that end. And likewise every Officer armed as before, with a firelocke, or Snaphaunse, headpeece, and a Target, onely the Serjeant in Garrison shall use his Halbert, and in field his Snaphaunse and Target." (p32)*]

Statutes at Large of the Colony of Virginia

In 1618, the council of the Virginia Company issued an order providing for a Governor, a Council of State and a General Assembly to be formed in Virginia, making it the first American colony with a written constitution for the self-regulation of its internal affairs. Accordingly, on July 30, 1619 the first legislative assembly convened at Jamestown. It abolished the martial law and began organizing a new, comprehensive legal order for the colony. The General Assembly would continue to meet at regularly throughout the colonial period to improve and amend the growing body of Virginia law. [transition]

Civilian Regulations

One of the first gun regulations promulgated by the new legislature was the 1629 decree that "[a]ll men that are fitting to beare armes, shall bringe their peices to the church." (9) In concert with earlier provisions which mandated attendance at the Anglican church, this law ensured that the entire colony would be gathered, and armed, on Sundays.(10) As a society born from the English common law tradition, the obligation to carry arms was nothing new. Though the phrase "men fitting to bear arms" is not defined in this or any prior Virginia provision, the English tradition tells us that it likely referred to free, able-bodied white men. In 1629, the population of the colony of Virginia overwhelmingly fit that description. (11) Thus, initially, few men were excluded from of the legal obligation to bear arms. The legislature later revised the law to apply only to "the masters of every family," who were now required specifically to bring "one fixed and serviceable gun with sufficient powder and shott" to church with them on Sundays. They would face a fine of ten pounds of tobacco for failing to do so, while "servants being commanded and yet omitting shall receive twenty lashes." (12)

The earliest statutes required arms bearing specifically in church because the church was a major community gathering place. Later provisions required arms bearing in courts as well (13), and required that "[n]oe man shall goe to worke in the grounds without theire armes."(14). That same statute went on to demand that no man "shall spend powder unnecessarilie"(15) and required that each plantation owner take an annual census of his men and his assets, including his arms an munition. (16). Men too poor to buy their own arms would have them furnished by the community treasurer. (17) Arms and ammunition, it seems, were viewed as indispensable resources - to be counted and saved carefully, and carried always. When, in 1675, the legislature passed an act providing for the naturalization of a specific citizen, it made a broad declaration that he shall be afforded all the privileges of a natural born Englishman. Interestingly, the only other specific provision made was for the expedient provision of his arms: "that the late act for provideing armes and ammunition be putt into strict and effectuall execution." (18) The intent, it seems, was to ensure that every man be armed at all times.

By 1643 however, the residents of Virginia had begun to acknowledge that firearms could occasionally create a nuisance. Act XI of that year declared it a crime to hunt on a neighbor's land without permission, (19) while Act XXXV commanded that, in observance of the Sabbath, no guns shall be shot on Sundays, except in defense against the Indians or when necessary for the safety of the plantation. (20) A 1655 provision the made it a crime to "shoot any gunns at drinkeing (marriages and ffuneralls onely excepted)"; (21) a few years later the law was amended to outlaw shooting at marriages and funerals as well (but allowing an exception for "buryalls"). (22) Eventually the legislature announced that any man who makes a false alarm in the camp or quarters or who shoots his musket at night time would be put to death. (23) Notably, these provisions explicitly cited the danger of Indian attacks and the false alarm caused by celebratory gunshots as the purpose for these restrictions. That is to say, the laws proscribing gunfire were not motivated by the intrinsic danger of the weapons themselves, but instead by the danger of Indian incursions. This purpose can be seen throughout the body of colonial legislation. In a 1644 provision, the legislature cited recent raids by Indians as its motive for requiring that no man may plant an outlying plantation ("seate above the plantations already seated") without at least four able, well armed men prepared to protect it.(24) The 1675 act that reiterated the duty to attend church and court armed explicitly cited arms as an imperative for "greate security" in "tymes of danger." (25) (Taken together, these provisions show that the carrying of arms was viewed as an indispensable safeguard, and that the regulation of their use justified only as a matter of protection from enemies.)

The next year however, after Nathaniel Bacon and a group of armed rebels lead a revolt in Jamestown, the legislature's attitude about arms bearing changed. In 1677 the General Assembly declared that the liberty of arms bearing "hath beene found to be very prejudiciall to the peace and wellfaire of this colony," and ruled that if "any person or persons shall, from and after publication of this act, presume to assemble together in armes to the number of five or upwards without being legally called together in armes the number of ffive or upwards, they be held deemed and adjudged as riotous and mutinous, and that they be proceeded against and punished accordingly." (26)

Indians

As noted above, the stated motivation for much of the early legislation requiring arms bearing (and restricting arms use) was the imminent threat of Indian incursion. Indeed, the Virginia settlers had quickly discovered that the native inhabitants of America could pose a serious threat to their colonial project. The key to subduing the natives, it seemed, was to ensure the maintenance of superior weapons. As John Smith explained in his instructions for the settling of Virginia:

And how weary soever your soldiers be, let them never trust the country people with the carriage of their weapons; for if they run from you with your shott, which they only fear, they will easily kill them all with their arrows. And whensoever any of yours shoots before them, be sure they may be chosen out of your best marksmen; for if they see your learners miss what they aim at, they will think the weapon not so terrible, and thereby will be bould to assault you.

The General Assembly heeded Smith's warning. In 1633 it ruled that any person who shall "sell or barter any guns, powder, shott or any armes or ammunition unto any Indian or Indians within the territorie," shall "forfeite to publique uses all the goods and chattells that he or they then have to theire owne use, an shall also suffer imprisonment duringe life." In order to incentivize reporting, the law provided that half of any such forfeiture shall go to the informant. (27) In 1639, the prior act making it a felony to barter with Indians was repealed, "and enacted that for trading with them for arms and amunition shall be felony, and for other commodities imprisonment at discretion of the Governor and Council." (28) At the time, the standard punishment for a felony conviction was death. (29). The legislature later retreated a bit from this harsh penalty, enacting revisions in 1642 which restored the original sentence of half of the convict's estate. The 1642 act also made it a crime to furnish Indians with arms for the purposes of hunting game, in the process of which "not onely the Indians (to the great indangering of the collony) are instructed in the use of our arms, but have opportunity given them to store themselves as well with arms as powder and shott." Anyone encountering such and Indian so furnished could lawfully "take away either peece, powder or shott . . . [and] carrie the same to the comander of the county," who was instructed to make a "a strict inquire and examination to find out such person that did lend or give such peece, powder or shott to the Indians." The guilty party must forfeit two thousand lbs. of tobacco for his first offense, and his entire estate for his second. (30)

The colonists' changing relationship with the Indian natives is reflected in the progression of their laws. In 1645, the House of Burgesses passed an Act establishing Fort Henry and instructing the inhabitants of the Norff counties and the Isle of Wright to "undertake the warr against the Nansimum Indians, or any other neighbouring Indians, by cutting up their corne and doing or performing any act or acts of hostility against them."(31) Another act passed during the same legislative session "prohibit[ed] any terms of peace to be entertained with the Indians."(32) By 1656, however, hostilities with the Indians had cooled. The legislature's first act of that year dramatically decreased the anti-Indian regime, repealing the law which allowed for the killing of trespassing Indians and declaring that an Indian may only be lawfully killed when committing an act that would be a felony for an Englishman (who would also face death for such a crime). It also allowed unarmed Indians to gather fruits and berries within the colony grounds, and declared that all free men could trade non-restricted items (that is, not guns) with the Indians. (33)

In this climate of improving relations between the Indians and the settlers, the General Assembly even acknowledged that there existed certain threats more hazardous than an Indian with a gun. In 1657, recognizing that "of late yeares the wolves have multiplied and increased exceedingly to the greate losse and decrease of cattell and hoggs," the Assembly empowered the county commissioners to take initiative to destroy the wolves "in what way they shall best agree, by imploying Indians or otherwise, Provided they arme not the Indians with English armes and gunns contrary to act of Assembly." (34) Notably, an act passed during the same legislative session reiterated the ban on selling, bartering or lending arms to Indians, and even increased the penalties for doing so. (35) Thus, the county commissioners were permitted to hire armed Indians to hunt the menacing wolves, but only if those Indians had somehow acquired their guns in a way that did not violate this ban. The explanation for this seemingly contradictory set of laws can be found in the statutes from the following year. In 1658 the legislature enacted a law allowing free trade with the Indians, noting in the preamble that, despite legislation in place prohibiting trade of arms with Indians, "neighbouringe plantations both of English and fforrainers do plentifully furnish the Indians with gunns, powder & shott." The act went on to explain that those dealing arms with the Indians "do thereby drawe from us the trade of beaver to our greate losse and their profitt, and besides the Indians [are] being furnished with as much of both gunns and ammunition as they are able to purchase." (36) It was therefore enacted: "That every man may freely trade for gunns, powder and shott: It derogateing nothing from our safety and adding much to our advantage." (37)

But despite the proclamation that it "derogate[d] nothing from [their] safety," this free trade with the Indians was short lived. In 1665 the legislature repealed the free trade provision and reinstated the prohibition on the sale or trade of arms and ammunition to the Indians, upon penalty of ten thousand pounds of tobacco or two years in jail. The act noted that the reason for the free trade provision was that at the time it was "thought impolitick to debarre ourselves from soe greate an advantage as might accrue to us by the Indian trade, when we could not prevent their supply," and explained that the policy was now being reversed "since those envious [Dutch] neighbours are now by his majesties justice and providence removed from us, and the trade now likely to be in our hands, and none to furnish them besides ourselves, who in these times of eminent danger have scarce ability to furnish our owne people." (38) Note that the law makes no appeal to the danger of Indians being armed, but rather cites only the short supply of weapons in a time of imminent danger. Of course, history tells us that in 1675 the most imminent threat to the Virginia colony was probably its own citizens, as Bacon's Rebellion would soon erupt in the the capital. [...]

With the reversal of the free trade law in 1665, the Virginia legislature entered another cycle of the intensification of restrictions, following by their gradual liberalization. In 1675, after noting that trade of arms with the Indians continued despite being outlawed, the General Assembly enacted more comprehensive restrictions and steeper penalties. It was now illegal to "trade, truck, barter, sell or utter, directly or indirectly, to or with any Indian any powder shott or armes," and those in violation "shall suffer death without benefitt of clergy, and shall forfeite his or their whole estates."(39) Moreover, any person found in any Indian town or more than three miles outside of the English plantations "with powder, shott or other armes and ammunition, except one gunn and tenn charges of powder and shott for his necessary use, although he or they be not actually tradeing, trucking, bartering, selling or uttering to or with the Indians, he or they soe found, and thereof lawfully convicted shalbe adjudged guilty of selling and suffer accordingly." The statute went as far as to assert that any Indians living peacefully amongst the colonists "if they be not supplyed with matchcoates, hoes and axes to tend their corne and fence their ground, must of necessity perish of ffamine or live on rapine."(40) A single exception to the strict provisions of this statute was made for the furnishing of a small quantities of arms to Indians employed by whites, such that "shall reasonably be thought to be usefull and to be expended by them in such their service and not otherwise."(41) Natives could not be trusted with arms, it seems, except in the service of white men. The following year, the legislature revoked provisions which had allowed for the trade of certain non-restricted goods with the Indians, and banned all trade of any kind. An exception, however, was made for Indians in the employ of Englishmen, who could continue to collect the value of their wages. (42)

By the end of 1676, however, relations with the Indians had improved significantly. The legislature declared that "all persons have hereby liberty to sell armes and ammunition to any of his majesties loyall subjects inhabiting this colony, and that the Indians of the Easterne shore have like and equall liberty of trade or otherwayes with any other our ffriends and neighbouring Indians." (43) The following year the legislature endorsed free trade with friendly Indians and even provided for the establishment of marts or fairs to facilitate such trade. It noted, however, "that it shall not be lawfull or permitted any Indian or Indians resorting to or meeting at any those aforesaid marts or ffaires to travell with or carry armes, or appeare there armed, except only the carrying home such armes or ammunition as they shall then and there purchase." (44) By the early 18th century, Indians in Virginia enjoyed nearly unfettered access to guns. The only legal restriction remaining, it seems, was the requirement that Indians be unarmed when they exercises their licenses to fish in English waters. [vol 3, 467]

Slaves

While the settler's struggle to suppress the Indian population is evident from even the earliest Virginia statutes, their trouble with "negroes" is barely reflected in the law... the The growth of the slave trade can be traced through laws of Virginia. There is virtually no mention of slaves or "negroes" in the earliest codes, presumably because they had not yet arrived in the colony. The legislature first addressed the issue in its 1639 Acts, wherein it exempted negroes from a provision requiring all persons to be provided with arms and ammunition. (45) In 1680 the General Assembly passed "An Act for preventing Negroes Insurrections" which declared that "[i]t shall not be lawfull for any negroe or other slave to carry or arme himselfe with any club, staffe, gunn, sword or any other weapon of defence or offence, nor to goe or depart from of his masters ground without a certificate from his master, mistris or overseer, and such permission not to be granted but upon perticuler and necessary occasions." (46) A 1702 provision reiterated this prohibition, and further provided that any slave found off his plantation or in possession of a weapon should be apprehended and given twenty lashes. (47) Later amendments provided for steeper punishments. (48)

By 1723, however, the colonists had noticed that there might be useful reasons to provide a slave with arms. Though the provisions enacted at the _ session of 1723 did instruct that, "[g]uns, ammunition, etc. found in possession of negroes, may be seized & the negro whipped," (49) they also allowed for a "free negro, mullatto, or indian," who serves as a house-keeper, or is listed in the militia, "to keep one gun, powder, and shot." Moreover all negros, mullattos, or indians, bond or free, living at any frontier plantation, be permitted to keep and use guns, powder, and shot, or other weapons, offensive or defensive; having first obtained a licence for the same." (50)

The efforts of the Virgina colonists to [] began in earnest in 1748 with the passage of an act entitled...

• 1748, Cha XV: "An Act directing the trial of Slaves committing capital crimes; and for the more effectual punishing conspiracies and insurections of them; and for the better government of negroes, mulattoes, and Indians, bond or free." [Vol 6, 109-111]
  • XIX - "Provided nevertheless, That every free negroe, mulattoe, or Indian, being a house keeper, may be permitted to keep one gun, powder, and shot: And all negroes, mulattoes, and Indians, bond or free, living at any frontier plantation, may be permitted to keep and use guns, powder, shot, and weapons, offensive, or defensive, by licence, from a justice of peace, of the county wherein such plantations lie, to be obtained upon the application of free negroes, mulattoes, or Indians, or of the owners of such as are slaves."
  • XX - "And be it further enacted, by the authority aforesaid, That if any negroe, mulattoe, or Indian, bond or free, shall at any time, lift his, or her hand, in opposition to any christian, not being a negroe, mulattoe, or Indian, he, or she so offending, shall for every such offence, proved by the oath of the party, before a justice of peace, of the county where such offence shall be committed, receive thirty lashes, on his, or her bare back, well laid on, by order of such justice."
  • XXI - Grants the power for the sheriff to "take such power with him, as he shall think fit and necessary" for the apprehension of outlying slaves.
  • XXII - Any slave killed in the execution of this act shall have his value certified and paid for by the public. [Vol 6, 110]
  • XXIII - "And that where any slave shall happen to die, by reason of any stroke, or blow given, during his, or her correction, by his, or her owner, or by reason of any accidental blow whatsoever, given by such owner, no person concerned in such correction, or accidental homocide, shall be liable to any prosecution, or punishment for the same, unless upon examination before the county court, it shall be proved, by the oath of at least one lawful and credible witness, that such slave was killed wilfully, maliciously, or designedly; and no person indicted for the murder of a slave, and upon trial found guilty of manslaughter only, shall incur any forfeiture, or punishment, for such offence, or misfortune."

• 1738, Acts of the General Assembly, Chap. II: An Act for the better Regulation of the Militia [Vol. 5, 16-19] o VI. "That all such free mulattos, negros, or Indians, as are or shall be listed, as aforesaid, shall appear without arms; and may be emploied as drummers, trumpeters, or pioneers, or in such other servile labour, as they shall be directed to perform." Under provision XI, soldiers are given 18 months to furnish themselves according to the act.

• 1755, Chap. 2 "AN act for better regulating and training the Militia" [Vol 6, 530-533] o VII. "And be it further enacted by the authority aforesaid, That all such free mulattoes, negroes and Indians, as are or shall be listed, as aforesaid, shall appear without arms, and may be employed as drummers, trumpeters or pioneers, or in such other servile labor, as they shall be directed to perform. And for the better training and exercising the militia, and rendering them more serviceable.”

Papists

* 1756 Chap. IV - "An Act for disarming Papists, and reputed Papists, refusing to take the oaths to the government." [Vol 7, 35-38]

• • III. No Papist or reputed Papist so refusing [to take an oath denying] "shall, or may have, or keep in his house or elsewhere, or in the possession of any other person to his use, or at his disposition, any arms, weapons, gunpowder or ammunition, (other than such necessary weapons as shall be allowed to him, by order of the justices of the peace at their court, for the defence of his house or person) and that any two or more justices of the peace, from time to time, by warrant under their hands and seals, may authorise and impower any person or persons in the day-time, with the assistance of the constables where the search shall be (who is hereby required to be aiding and assisting herein) to search for all arms, weapons, gunpowder or ammunition, which shall be in the house, custody, or possession of any such Papist, or reputed Papist, and seize the same for the use of his majesty and his successors; which said justices of the peace shall from time to time, at the next court to be held for the county, where such seizure shall be made, deliver the said arms, weapons, gunpowder and ammunition, in open court, for the use aforesaid." (36-37) Penalty for violation was three months in jail and forfeiture of arms. (37) Anyone discovering and turning in such a Papist is awarded the value of the arms discovered. (37)

Broader Implications

Colonialism and Power

Class, Race and the de facto caste system

Modern Parallels

Notes

1 : The First Charter of Virginia, at XV

2 : Note that all quotations in this document preserve their original, archaic spellings.

3 : The First Charter of Virginia, at XI, XIV.

4 : See David Flaherty, Ed., Introduction to the Jamestown Foundation's printing of the Laws Divine, Moral and Martial.

5 : Lawes Divine, Morall and Martiall of the Colony of Virginea Britannia, at 15, 23.

6 : Lawes Divine, Morall and Martiall of the Colony of Virginea Britannia at 28, 35.

7 : Lawes Divine, Morall and Martiall of the Colony of Virginea Britannia at 33, 50.

8 : Lawes Divine, Morall and Martiall of the Colony of Virginea Britannia at 34.

9 : The Laws of Virginia, Vol. 1, at 174(LI).

10 : The Laws of Virginia, Vol. 1, at 123(2).

11 : See Jamestown Census Records

12 : The Laws of Virginia, Vol. 1, at 263(XLI).

13 : The Laws of Virginia, Vol. 2, at 333.

14 : The Laws of Virginia, Vol. 1, at 198(XLII).

15 : The Laws of Virginia, Vol. 1, at 198(XLIV).

16 : The Laws of Virginia, Vol. 1, at 200(XLII).

17 : [The Laws of Virginia, Vol. 5, at 93(III)

18 : The Laws of Virginia, Vol. 2, at 339(IV).

19 : The Laws of Virginia, Vol. 1, at 248(XI).

20 : The Laws of Virginia, Vol. 1, at 261(XXXV).

21 : The Laws of Virginia, Vol. 1, at 401(XI).

22 : The Laws of Virginia, Vol. 2, at 126(CXIX).

23 : The Laws of Virginia, Vol. 2, at 335(18).

24 : The Laws of Virginia, Vol. 2, at 209(II).

25 : The Laws of Virginia, Vol. 2, at 333.

26 : The Laws of Virginia, Vol. 2, at 386.

27 : The Laws of Virginia, Vol. 1, at 219(X).

28 : The Laws of Virginia, Vol. 1, at 227(XVII).

29 : The Laws of Virginia, Vol. 1, at 255(XXII)"(And being lawfully convicted thereof, shall suffer death as in case of felony").

30 : The Laws of Virginia, Vol. 1, at 255-256

31 : The Laws of Virginia, Vol. 1, 315 at XIII

32 : The Laws of Virginia, Vol. 1,, 333, XVII

33 : The Laws of Virginia, Vol. 1, 415.

34 : The Laws of Virginia, Vol. 1, 457

35 : The Laws of Virginia, Vol. 1, Act XVII, Vol. 1, 441

36 : The Laws of Virginia, Vol. 1,, 525, xxiv

37 : The Laws of Virginia, Vol. 1, 525, xxiv.

38 : The Laws of Virginia, Vol. 2, 215

39 : The Laws of Virginia, Vol. 2, 337-338, Act II.

40 : The Laws of Virginia, Vol. 2, 337-338

41 : The Laws of Virginia, Vol. 2, 337-338.

42 : The Laws of Virginia, Vol. 2, 350-351

43 : The Laws of Virginia, Vol. 2, 403

44 : The Laws of Virginia, Vol. 2, 412*.

45 : Vol. 1, 226

46 : cite?

47 : 1705 - XLIX, XXXV

48 : [Vol 6, 109-111 - 1748, XVII

49 , 50 : Vol 4, 131

---

A Note on Sources

This project derives almost exclusively from the laws of the colony of Virginia. It neglects a large segment of the history of the colony - that history which took place outside the scope of the statues - and in doing so it fails to fully describe culture and experience of guns in colonial Virginia. It is a fossil record, if you will; teeth with no mammals attached.

Op-ed

A letter to the editor of the Richmond Times-Dispatch, in response to these articles. _________________________________________________

Yesterday you reported on a rally organized in Virginia by gun-rights advocates. As a gun enthusiast who supports responsible gun ownership and sensible gun control regulation, I find this rally and its message disturbing.

The idea that the state is coming to take our guns away is simply false. This is especially true in the commonwealth of Virginia, where just a few months ago the General Assembly passed a bill dramatically scaling back many of the state’s gun control restrictions. We are now among the most liberal states in the country in terms of purchase and carry restrictions.

Things look good for gun-rights advocates on the national level as well. As we await the Supreme Court’s opinion in the case of McDonnell? v. Chicago (which challenges a Chicago gun ban), it should please us to remember that all five Justices who joined the majority opinion in DC v. Heller still sit on the Court today. Heller, of course, was the 2008 case that struck down the DC gun ban and emphatically declared that the Second Amendment protects an individual, rather than collective, right. We have every reason to expect that the forthcoming McDonnell? decision will incorporate that right as binding against the states. I get the impression that those attending yesterday’s rally do not understand how huge a coup this is for gun-rights advocates; we will soon be living in a time of unprecedented constitutional protection of the right to bear arms. The man quoted in your article who suggested that the right to bear arms is “in jeopardy of being taken out of our Constitution” could not be more wrong.

Moreover, it behooves us to remember that the right of the state to restrict gun rights in certain ways is an American tradition as deeply-rooted as the general right to bear arms. The General Assembly of Virginia has placed restrictions on the manner and means of arms bearing for nearly 400 years, both before and after the passage of the American Constitution and its second amendment. Who could own guns, where they could bring them, what type of guns were allowed, and how guns could be sold and traded have been matters clearly within the state’s regulatory domain since long before our nation’s founding. In fact, under a 1677 Virginia law – which recognized that the unrestricted liberty to bear arms “hath been found to be very prejudicial to the peace and welfare of this colony” – armed men who assembled in groups of five or more were deemed to be “riotous and mutinous.” During the colonial era, everyone who attended yesterday’s rally could have been arrested for mutiny.

Of course, under our modern laws, the right of yesterday’s protesters to assemble with their arms in tow is fully protected. As it should be. My point is that the so-called founding principle of arms bearing that these people seek to defend was at least as limited during the founding era as it is now. To romanticize gun rights as some kind of fundamental and unfettered freedom throughout American history is a serious misrepresentation of what arms bearing meant to our nation’s founders, and a disservice to those of us who take seriously the traditions of our great democracy.

Finally, even if the fear of losing our gun rights was justified (it's not), and even if gun rights were truly a vital element of the American tradition (they’re not), the rhetoric of yesterday’s rally would still be a completely inappropriate way to respond. Spreading the idea that “we are in a war,” or that “they’re coming for everything because they’re a bunch of socialists” is malicious and irresponsible. That’s the kind of talk that really does incite violence.

Ultimately, I am writing to remind those who attended yesterday’s rally that no one is coming for our guns. Not only that, but our nation wasn’t founded on the principle that we get to carry our guns anywhere we want. It was founded on the principles of open discourse, democratic decision-making, and respect and tolerance for the opinions of our fellow citizens. And when you use the rhetoric of war to oppose some illusory political desire to restrict gun rights, you do a grave injustice the democratic principles of our great nation.

-- JuliaS - 25 Oct 2009

• MassLawExcerpts(lowres).pdf: Excerpts from the Colonial Laws of Massachusetts

*Note

This document is a little hard to read; the high resolution version was too large (~190MB) to upload here. If anyone can tell me how to upload a larger document or how to make a document smaller without losing quality, that'd be great.

• ConnecticutCodeExcerpts.pdf: Excerpts from the Blue Laws of Connecticut