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Q U I C K   L I N K S

To learn more about the engraver of the 17th-century head-piece pictured to the left, see the IN BRIEF biography for Wenceslaus Hollar.

This detailed study of our founders’ gun laws (pre- and post-Second Amendment) is the first entry in She-philosopher.​com’s new series on the 17th-century historical context for Anglo-American gun culture.
  Forthcoming essays in the series will cover such topics as the first automatic weapons (and other fantastical military hardware) from a late-15th-century military treatise ... the character question (“good guys with guns”) ... the random gunshot that almost brought down Elizabeth I (in 1579) ... one of the first drive-by shootings (in 1682) ... women warriors (“Feminine Cavaliers”) in fact and fantasy ... and militarized recipes for “Triumphs and Trophies in Cookery” (pies filled with live frogs and birds, and ships with cannon that fire, with the food serving up table-top drama “which makes the Ladies to skip and shreek” and “will cause much delight and pleasure to the whole company” during holiday banquets in noble households, such as that in which Margaret Cavendish was raised).

Elizabeth I had a profound influence on military men who established English Protestant colonies in America. Click/tap here to view a facsimile of a popular 17th-century print glorifying Elizabeth’s military leadership — the Elizabethan photo op that galvanized an empire.
  Cf. Donald Trump’s postmodernist performance as a “wartime president” which has dishonored, and threatens to destroy, Elizabeth’s Anglo-American legacy.

NEW  Rep. Matt Gaetz’s (R-Fla.) support for rogue militias and armed insurrection is, as Lisa Desjardins pointed out on 5/28/2021, becoming mainstream, especially within the Republican party.
  During the 2020 election, Rep. Darrell Issa (R-Calif.), battling Democrat Ammar Campa-Najjar for California’s 50th District U.S. House seat, asserted: “A militia in fact is a personal right under the Second Amendment and your right to defend your community and to take charge, if your government fails you, or to take arms if your government turns on you; those are your constitutional rights” (qtd. in “Local Democrats Angered by 50th District Candidate Campa-Najjar’s Interview with Far-Right Group” by Matt Hoffman and David Washburn [posted to the KPBS website, 10/11/2020]; see alsoCongressional Candidates Pandering to the Fringe” by columnist Michael Smolens [San Diego Union-Tribune, 10/18/2020, pp. B1 and B12]).
  Such ahistorical, but popular, misconceptions of the Second Amendment have great appeal for constituencies with legitimate grievances when “government fails you,” or “government turns on you,” and our First Amendment right to petition government for a redress of grievances goes nowhere.
  Law enforcement personnel, like Wilkinson County (Georgia) sheriff’s deputy Cody Griggers, who take an oath of public service, then go rogue — using the power of their office to terrorize others of whom they disapprove or dislike; to illegally traffic weapons (“At one point, Griggers offered to provide Zamudio with law enforcement-only 9 mm ammunition and explosives”); and to enable antigovernment militias (“I’m the guy on the inside. I can figure out if my dept is siding with the enemy or not, and from there I’m either positioned to maximize damage by attacking from the inside, or coordinate efforts to safely identify ourselves as patriots in order to maximize weapons pointed towards the enemy and minimize friendly fire,” bragged Griggers on social media) — are not simply the proverbial “bad apple,” but have garnered mainstream support (seeS.D. Arrest Leads FBI to Extremist Group and Ga. Deputy: Investigation began with online posts by member of Defend East County: Probe offers window into militia movement” by Andrew Dyer and Kristina Davis [San Diego Union-Tribune, 5/2/2021, pp. A1 and A21]).
  Cf. ongoing revelations about San Diego deputy sheriffs also using gun trafficking as a means to obtaining political power.

NEW  For more about the 21st-century rise of antigovernment militias, see: “The Armies of the Right: Though Trump Is Gone, the Legions of Far-Right Extremists He Inspired Will Continue Marching On” by Luis Feliz Leon (The Progressive, vol. 85, no. 2, April/May 2021, pp. 27–30).
  And see: “After the Storm: The U.S. Far Right Is at a Crossroads” by Matthew N. Lyons (The Progressive, vol. 85, no. 2, April/May 2021, pp. 23–26).

Click/tap here to open an illustrated second-window aside with a note on this country’s earliest representative institution, the Virginia House of Burgesses, along with little-known founding principles of universal suffrage and of full representation in 1620s–1650s Virginia. (Last modified: 6/13/2021.)
  Includes the text of Anglo-America’s first Aliens Restriction Act (1632), allowing the Virginia government to imprison and deport French inhabitants brought to the colony on the 17th-century equivalent of work visas.
  Also includes the text of one of Anglo-America’s first statutes (1631) mandating a census of all inhabitants and their material goods, including guns, ammunition, and other weaponry. The census has been a cornerstone of Anglo-American democracy since the founding of this country in the early 17th century. The original U.S. census — providing a snapshot of the provincial population, assets, and GDP — was an annual (instead of decennial) count, to be conducted on the 1st of December each year.


ADDED 7/24/2020 (and last modified 6/13/2021): an endnote with my historian’s take on President Trump’s misguided Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census (issued 21 July 2020), wherein I argue that the founding “principles of representative democracy underpinning our system of Government” are not what President Trump thinks they are. Specifically, I cite 17th-century Anglo-American laws proving (1) the founders’ original intent that “all persons inhabitting in this collonie that are freemen [are] to have their votes in the election of” representatives (this was mandated in a 1658 statute); (2) that constitutional values concerning representation were driven by the republican principle, no taxation without representation, as in the preamble “we conceive it something hard and unagreeable to reason that any persons shall pay equall taxes and yet have no votes in elections” (this was declared in a 1656 statute); and (3) that setting things up to promote convenience in voting, along with universal suffrage for all taxpaying residents, was also a founding principle.
  As such, President Trump’s crusade against “Universal Mail-In Voting” — which he claims will be “INACCURATE & FRAUDULENT,” despite 21st-century safeguards, and expert projections that “the risk of ballot fraud [is] an infinitesimal 0.00004% to 0.0009%” (Calvin Woodward, “AP FACT CHECK: Trump’s Election Agitations and Distortions,” n. pag.) — is a postmodern obsession, not shared by Anglo-America’s founders, and very much at odds with the founding “principles of representative democracy underpinning our system of Government.”

Two of this nation’s founding gun-control laws, passed in 1686 and 1694 in the most “rebellious” of the Anglo-American colonies (East New Jersey) are documented in She-philosopher.​com’s comprehensive study of California’s flawed Good Neighbor Fence Act of 2013 (California Assembly Bill 1404).
  Like the early Virginia statutes described here (main body text to left), these 17th-century laws, passed by this country’s first representative institutions, puncture 19th- through 21st-century mythologizing about the foundational status of gun rights in the U.S. (including the 19th-century marketing campaign persuading us that “guns are what make you free”).

A detailed discussion of the first published debate concerning gun control in the United States is available at our sister project known as Roses. See that website’s digital reissue (2014) of Thomas Tryon’s anti-gun polemic, The Planter’s Speech to his Neighbours & Country-Men of Pennsylvania, East & West-Jersey ... (1684).
  A prefatory discussion of Tryon’s early contribution to the gun culture debate in America is available at the Roses website’s What’s Blooming news page (entry dated 5/9/2014).
  And see also that website’s news blog entry posted on 3/26/2018 for more historical facts about guns & gun culture in 17th-century Virginia.

For more on the history of guns in the U.S., see the PBS NewsHour feature, “Firearms Museum Takes Aim at Understanding History, Culture of Guns” (first aired 12/16/2019).
  SUMMARY: “Wyoming is the least populous state in the U.S. but ranks near the top in per capita gun ownership. It’s also home to the nation’s most comprehensive collection of historical firearms. Jeffrey Brown reports from Cody, where a renovated firearms museum traces the role guns have played in shaping American history and urges visitors to come to their own conclusions about their place in society today.”

The proud display of guns at gun shows (vs. museums) has catalyzed the gun-control debate in California.
  A new state law, which takes effect in 2021, bans gun and ammunition sales at state-owned venues, such as the Del Mar Fairgrounds in north San Diego County, where the Crossroads of the West Gun Show has been a biannual attraction for decades. The gun show event was again held in December 2019, after being suspended in 2018, but its future is uncertain, pending litigation, as reported by Morgan Cook in “Backers, Foes Rally as Gun Show Returns to Del Mar Fairground” (San Diego Union-Tribune, 12/15/2019, p. A3).
  Gun show supporters — “sane, trained, law-abiding gun owners who want to assemble, want to get together and learn, and meet with each other and transact business legally and use things responsibly” — contend that gun shows are good family entertainment, and “it’s important that people have access to meet gun enthusiasts, to have a place to go and meet and learn best practices and see some of the new equipment that is out. It’s a lot of fun.”
  Gun show opponents counter that “easy access to guns” should not “be advertised as family-friendly because women and children are so often victims of domestic violence homicides, the rate of which recent research has tied to gun ownership.” Nor is “a distaste for gun-enthusiast culture” driving local opposition: “This isn’t about culture [...] This is about the state being involved in promoting and profiting from the sale of firearms and ammunition on state-owned property. The government does not belong in this business.” (M. Cook, A3)

Gun show bans and other gun-control legislation enacted by the states are now being challenged at the local level, with the rise of “Second Amendment Sanctuaries.” (This is a case of compounding ironies: as I argue here, a sovereign state’s prerogative “to keep and bear arms” is what the original Second Amendment was all about.)
  The Second Amendment Sanctuary movement pits local elected representatives (sheriffs) against statewide elected representatives (governor and legislators) in a contest over state laws regulating guns (which supposedly violate the Constitution), giving sanctuary sheriffs the right to exercise “professional discretion” in choosing which state laws to enforce. (To reiterate, in pre- and post-revolutionary Anglo-America, any such rebellion against the provincial government would have been considered sedition, and put down accordingly.)
  Dueling op-eds over 21st-century “Second Amendment Sanctuaries” in California, Colorado, Illinois, Rhode Island, Texas and elsewhere were posted to the InsideSources.​com website on 12/18/2019:
  1. “POINT: Second Amendment Sanctuaries Reflect the Will of People Who Value the Constitution” by Teresa Mull.
  2. “COUNTERPOINT: Second Amendment Sanctuaries Are a Legal Fiction that Jeopardize Public Safety” by Chelsea Parsons.


For more on local pushback against state gun-control laws — “including universal background checks, assault weapon bans and red flag laws that would allow authorities to temporarily take guns away from people deemed dangerous to themselves or others” — in 21st-century Virginia, seeSecond Amendment Sanctuary Push Aims to Defy New Gun Laws” by Denise Lavoie of the Associated Press (posted to the AP website, 12/21/2019).
  In Virginia, which happens to be home to the National Rifle Association’s headquarters, “The counties are saying, this stuff is unconstitutional. We don’t want it, we don’t want to enforce it, and in most cases, we won’t enforce it,” according to Philip Van Cleave, president of the Virginia Citizens Defense League. And at least “One Virginia sheriff has vowed to deputize thousands of county residents ‘to protect their constitutional right to own firearms.’” (D. Lavoie, n. pag.)
  But as I have documented (at left) here, the state legislature’s right to control guns, including the arming and disarming of individuals, dates to the founding of this country (scil., the first gun control law passed by the Virginia House of Burgesses on 5 March 1623–4).

Another historic decision: “9th Circuit Ends California Ban on High-Capacity Gun Magazines” by Don Thompson of The Associated Press (posted to the PBS NewsHour website, 8/14/2020).
  “Aside from the magazine ban itself, [California Rifle & Pistol Association attorney Chuck] Michel and the unaffiliated Second Amendment Foundation said the case has legal implications for other gun restrictions should it reach the justices [of the Supreme Court] because it could allow the court to clarify an obscure legal debate over what standard of review should be used.  ¶   ‘The Supreme Court seems inclined to do away with the complicated subjective tests that many courts have wrongly applied in Second Amendment cases, in favor of a clearer more objective “originalist” approach that considers the text, history and tradition of a law to determine what infringements might be tolerated,’ Michel said in an email.” (D. Thompson, n. pag.)
  As I have argued here, the individual right to keep and bear arms, as popularized by the NRA, SCOTUS, etc. is a modern invention, and nothing to do with the original intent of militia laws dating back to 1619, when the Virginia House of Burgesses first made it a crime, punishable by death, to sell or give guns and ammunition to Native Americans (of note, subsequent statutes would allow the sale of guns — often part of the payment required for coveted tribal lands — to the indigenous inhabitants, but would afterwards prohibit the sale of shot and powder, and also any gun repairs). So “the text, history and tradition of” militia law in this country is not the simple & straightforward “right to armed self-defense” that many, including appellate Judge Kenneth Lee, seem to think.


And see also “Court Strikes Ban on Gun Magazines: Law on high-capacity components ‘runs afoul of Second Amendment’” by Teri Figueroa (San Diego Union-Tribune, 8/15/2020, pp. A1 and A8). As Figueroa here explains, the lawsuit at the heart of Judge Lee’s 66-page decision was filed by five San Diego County residents who contend that California’s ban on high-capacity magazines infringes on their constitutional right to bear arms. “U.S. District Judge Roger Benitez sided with the plaintiffs and blocked enforcement. California appealed. Friday’s [federal appeals court] ruling upholds Benitez’s decision.” (T. Figueroa, A8)
  Of note, “Gov. Gavin Newsom — who as lieutenant governor crafted Prop. 63 in response to mass shootings — said during his coronavirus briefing Friday [8/14/2020] that he had not read the new decision, but he said the state law was sound.  ¶   ‘I think it was right and ... the overwhelming majority of Californians agreed’ when they voted in favor of the initiative, he said.  ¶   ‘I will remind everybody a gun has never killed anybody unless the gun is used as a blunt instrument,’ Newsom said. ‘A gun requires a dangerous and deadly component, and that is a bullet, ammunition.’  ¶   California, he said, has ‘long advanced efforts to focus not just on guns, but to focus on keeping those dangerous components out of the hands of people that should otherwise not be afforded that fundamental privilege-slash-right.’  ¶   Prop. 63 passed with 63.1 percent of the vote. The ‘yes’ votes in San Diego County tallied 61.5 percent. Approval in Orange County came in at 59.5 percent, and Los Angeles County backed it with 72 percent of the vote.” (T. Figueroa, A8)
  I would argue that Governor Newsom’s framing of ready access to ammunition as a “fundamental privilege-slash-right” is historically correct. As I believe I have proven here, from the founding of this country in 1607, access to guns and ammunition was considered a privilege (or a duty), not a right — and certainly not an inalienable right as many today claim.

NEW  The debate over Second Amendment gun rights amped up on 4 June 2021 with San Diego federal Judge Roger Benitez’s 94-page ruling which overturned California’s 30-year-old ban on assault weapons, declaring the state’s ban unconstitutional, and comparing the AR-15 semiautomatic rifle to a Swiss Army knife, “good for both home and battle.”
  For details, see “Judge Rejects Another State Ban: State vows to fight ruling on assault weapon restrictions” by Greg Moran (San Diego Union-Tribune, 6/6/2021, pp. A1 and A10), retitled “San Diego Federal Judge Wipes Out a Key Pillar of State Gun Regulations, Again: It is the third time since 2019 that U.S. District Judge Roger Benitez has struck down state gun laws” for online posting. And for a slightly different framing, see “Assault Weapons Ruling Prompts Outrage: Gun control backers fault judge’s reasoning in overturning state’s 30-year-old ban” by Alex Wigglesworth and Thomas Curwen (Los Angeles Times, 6/6/2021, pp. A1 and A10), retitled “After Judge Overturns California Assault Weapons Ban, State Officials Vow to Fight Back” for online posting.
  In the opinion of Judge Benitez, “The Second Amendment protects any law-abiding citizen’s right to choose to be armed to defend himself, his family, and his home[.] At the same time, the Second Amendment protects a citizen’s right to keep and bear arms to use should the militia be needed to fight against invaders, terrorists, and tyrants. The Second Amendment is about America’s freedom: the freedom to protect oneself, family, home, and homeland. California’s assault weapon ban disrespects that freedom.” (qtd. in G. Moran, A10)
  “In Friday’s ruling Benitez again drew unusual comparisons outside of the usual case law reference, though there were many of those, too. In addition to comparing assault-style weapons to the Swiss Army knife he also drew a comparison to the sales of the Ford F-150 pickup trucks to buttress his point that the assault rifles are widely popular and not weapons used by a relative handful.” (G. Moran, A10)
  A “local plaintiff in the case who is the chief executive of the San Diego County Gun Owners group welcomed the ruling. ‘I am happy that the judge agreed that these firearms are not exotic or unusual, and that my right to self defense is being violated by this ban,’ said Wendy Chou Hauffen. ‘These commonly owned rifles function just like any other firearm.’” (G. Moran, A10)
  Using the popularity — or even utility — of a particular gun for self-defense to prove a constitutional right to keep and bear arms is a modern invention, with no basis in “the text, history and tradition of” militia law in this country.
  The Second Amendment was originally about the struggle over royal prerogative. As the 1st duke of Newcastle advised Charles II, just prior to his restoration in 1660, the “Militia [...] Is your Ma[jes]ties Undoubted prerogative”: “Therfor I woulde have your Ma[jes]tie have all the Armes, & Amunitiann Inn your owne handes [...] firste by [...] disarminge off themm totalye, Inn all kindes, no more Citeye Captins or Collonnells, Artilerye yarde or Militarye yarde; & a penaltye Upponn anye thatt keepes Armes, levinge them nothinge butt their severall watches, Inn their severall wardes, & parishes to keepe the streetes Inn order & no more”; second, “& thenn by Arminge your selfe [...] to over Awe them & to keepe them In order” (William Cavendish, Letter to Charles II, a scribal publication written c.1650s). Taking Newcastle’s advice, Charles II became the first monarch to maintain field regiments in peacetime (before 1661, kings of England had raised temporary armies in time of war, which were disbanded on the conclusion of hostilities).
  Giving to individual provinces within the United States a constitutional right to keep “a well regulated militia” (what Newcastle called “traynde bandes In Everye Countye”) struck at the heart of royal prerogative. And this was the original intent of the Second Amendment — to ensure that each commonwealth (“a free state”) had the prerogative to secure itself “against invasions and insurrections.”
  The 18th-century transference (the Second Amendment was adopted on 15 December 1791), to individual states, of the king’s prerogative to keep what Newcastle called a “well orderde forse” (militia) has no bearing on Wendy Chou Hauffen’s 21st-century “right to self defense” using exotic, unusual, or commonly owned firearms. To claim that it does, is ahistorical.
  As I have argued at length here (main body text to left), the keeping of arms by private individuals was, from Anglo-America’s founding in 1607, controlled by provincial laws, and provincial governments have always had the right to arm or disarm individual residents according to those laws.


NEW  As expected, California has appealed U.S. District Judge Roger Benitez’s 6/4/2021 decision, which critics (such as Governor Gavin Newsom) believe is rooted in ideology, not science and public health. See “State Appeals Assault Weapons Ruling: Citing public safety, attorney general [Rob Bonta] seeks to reverse San Diego judge’s decision on three-decade-old ban” by Patrick McGreevy (San Diego Union-Tribune, 6/11/2021, pp. A1 and A6), retitled “California Appeals Judge’s Ruling that Overturned the State’s Assault Weapons Ban” for online posting.
  After filing his appeal, California State AG Bonta acknowledged that “The ban on assault weapons will not put an end to all gun violence, but it is one important tool the state has to protect the safety of Californians while also respecting the rights of law-abiding residents who choose to possess firearms” (P. McGreevy, A6).
  For his part, Judge Benitez “disputed the argument of state officials that the assault weapons ban has reduced gun violence. He said the number of mass shootings is about the same as it was before the ban.  ¶   ‘The assault weapon ban has had no effect,’ Benitez wrote in his 94-page ruling. ‘California’s experiment is a failure.’  ¶   But state officials said there is evidence that the law has prevented gun deaths.  ¶   On Thursday [6/10/2021], Bonta cited a study by the Everytown for Gun Safety Support Fund, which found that, for the last 12 years, the use of an assault weapon in a mass shooting has led to ‘six times as many people shot per incident than when there was no assault weapon.’” (P. McGreevy, n. pag.)
  Ironically, 21st-century gun rights advocates associated with the case make a mockery of this country’s founding debate over royal prerogative. E.g., Sam Paredes, executive director of Gun Owners of California, claims that Governor Newsom — “who as lieutenant governor wrote Proposition 63, a 2016 initiative approved by voters to toughen state law with measures including a ban on the possession of large-capacity ammunition magazines” (P. McGreevy, A6) — forgets “he is governor and not king”; similarly, the plaintiffs, in defending Benitez’s “legally- and historically-correct decision,” are calling California’s assault weapons ban “tyrannical.”
  In fact, Governor Newsom’s unwavering support for better gun-control laws is in keeping with foundational legislation (dating back to 17th-century Anglo-America) and the revolutionary assertion, a century later, of states’ rights against kingly prerogative.

NEW  “Advocates Turning to Courts More Over Gun Rights: San Diego has become major front in legal battle against gun regulations,” by Greg Moran (San Diego Union-Tribune, 7/4/2021, pp. A1 and A14).
  This article summarizes ongoing efforts by gun rights groups intent on modernizing the Second Amendment — turning constitutional language protecting the prerogative of every commonwealth (“a free state”) in the union to secure itself “against invasions and insurrections” by keeping “a well regulated militia” (previously a royal prerogative) into an individual right to possess firearms for self-defense and other purposes.
  “With some of the strictest gun-control laws in the country, California has become a focus of these legal battles. And while lawsuits have been filed in each of the state’s four federal court districts, San Diego has become a major front in the legal battle.” (Greg Moran, A14)
  Of note, “The legal battles are taking place against a backdrop of polls showing support among voters for some stronger gun laws, such as universal background checks, along with a surge in gun buying. Last week, [California Attorney General Rob] Bonta reported a 65 percent increase in the sale of handguns in 2020 from 2019 in California.” (Greg Moran, A14)

NEW  A profile of the San Diego judge who is upending California gun laws: “This San Diego Judge Is Striking Down Gun Laws: In an era of fierce polarization, Judge Roger T. Benitez is an object of rage and adoration” by Laura J. Nelson and Kristina Davis (San Diego Union-Tribune, 8/8/2021, pp. A1 and A10).
  Described as a Cuban émigré (“sent to Florida as part of Operation Peter Pan, a covert U.S.-backed effort to evacuate children from Cuba”) who “has seen tyranny up close and personal,” Judge Benitez is known for “rhetorical flourishes, dramatic anecdotes and a tendency toward gun-related puns [which] seem at times designed to troll gun-safety advocates, who view his rulings and his expansive view of the Second Amendment with a mixture of outrage and alarm.” (L. J. Nelson and K. Davis, A10)
  I, too, disagree with any kind of stealthy modernization of the Second Amendment by an activist court, but I agree with Judge Benitez’s “insistence that government lawyers prove that gun-control measures actually work” (L. J. Nelson and K. Davis, A10). As I have argued elsewhere, I am tired of legislation we can’t properly evaluate — then revoke, revise, or reenact, as appropriate. But the demand for more data-driven policies and judgments applies to Judge Benitez, as well as to the lawyers who appear before him.
  “In an attempt to argue that an AR-15 being used in a mass shooting is an ‘infinitesimally rare event,’ Benitez wrote in June that ‘more people have died from the COVID-19 vaccine than mass shootings in California.’ The statement, with no citation, mirrors talking points — unproved — about vaccine fatalities that have circulated on Tucker Carlson’s Fox News show and other right-wing news outlets.
  “The Centers for Disease Control and Prevention has found no ‘causal link’ between vaccinations and deaths.” (L. J. Nelson and K. Davis, A10)

NOTA BENE  For all you libertarians out there who believe in the Machiavellian theory of arms as essential to liberty (“Machiavelli’s military populism”), a brilliant historical study of the ideal of warrior citizenship — including its influence on the framing of U.S. constitutional governments — has been reissued by Princeton University Press: see The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition, by J. G. A. Pocock (1st edn., 1975; new edn., introd. by Richard Whatmore, 2016).
  The book can be tough going in places, but I recommend that you persevere.
  After all, parsing “the differences between ‘republican’ and ‘liberal,’ ‘ancient’ and ‘modern,’ concepts of ‘liberty’; and [...] the tensions between them” (J. G. A. Pocock, The Machiavellian Moment, new edn., 2016, 555) is in itself a complicated endeavor. Even a scholar of Pocock’s caliber can not turn such difficult discourse into light, summer reading. Refusing to “dumb it down,” Pocock’s scholarship does justice to the citizen warrior’s rich history and tradition, without being postmodernist (jargon-ridden), or condescending.
  IMO, Pocock provides a much more substantive foundation for contemporary republican arguments — impacting law, government, and culture — that the armed citizen is the only truly free man (and the bedrock of a balanced republic) than anything modern activist jurists (like San Diego’s Judge Roger T. Benitez) are trying to graft on to the Second Amendment.
  As Pocock points out, the debate over “the rise and fall of armed and active citizenship” is “ongoing and without a final outcome.” (J. G. A. Pocock, The Machiavellian Moment, new edn., 2016, 555)
  Maintaining (and even more ambitiously, advancing) what the 18th-century physician and encyclopedist, Dennis de Coetlogon, called “the publick Liberty” (De Coetlogon, An Universal History of Arts and Sciences, 2 vols., 1745, 2.42) is not now, and never has been, reducible to the Second Amendment, even if we manage to completely twist the sentence’s meaning, in order that it guarantees an absolute personal right to arms which would have been inconceivable to our founding fathers & mothers.
  As such, those wishing to make the case for a refashioned commonwealth of armed proprietors will need more substantive grounds on which to build than a corrupting modernization of the Second Amendment.
  I would suggest that Pocock’s provocative scholarship outlines exactly the type of persuasive argument you’ll need in developing a post-Second Amendment rhetoric suitable to a 21st-century republic.

NEW  Re. the mushrooming movement for gun control “policies ‘rooted in science and public health, not guesswork’”: “Bonta Off to Fast Start in State AG’s Office” (San Diego Union-Tribune editorial, 4/30/2021, p. B4), retitled “Sharing Gun Data Will Help Shape Better Laws and Make State Safer” for online posting.


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First Published:  23 November 2019
Revised (substantive):  10 August 2021


Opening quotation markA well regulated militia being
necessary to the security of a free
state, the right of the people to
keep and bear arms shall not be
infringed.Closing quotation mark

 The Second Amendment to the Constitution of the United States of America, as published in 1809 (by order of the Virginia state legislature) in one of the earliest printed collections of constitutional and statutory law, The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619 (1st edn., 4 vols., 1809–1814, 1.27), edited by the Richmond councilman, clerk of the Superior Court of Chancery for the Richmond District, and deputy adjutant general of Virginia, William Waller Hening (1767?–1828).
     Click/tap here to open a second-window aside with Hening’s biography.
     Click/tap here to view a series of images documenting the modern shift away from this original public meaning of the Second Amendment.

The Missing Historical Context: Anglo-American Gun Laws and the Original Intent of the Second Amendment

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17th-century head-piece showing six boys with farm tools, by Wenceslaus Hollar

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I N    S U M M A R Y

In this forthcoming study, I argue that the individual right to keep and bear arms, as popularized by the NRA, SCOTUS, etc. — e.g., “The Bill of Rights grants citizens the right to bear arms to protect themselves against a potential tyrannical government.” — is a modern invention.

It is my opinion that the Second Amendment (which developed from a rich body of militia & gun law dating back over a hundred years in the Anglo-American colonies) was not originally about the individual’s right “to keep and bear arms,” but about states’ rights to maintain an armed force (“a well regulated militia”) for the “better protection and defence of the country against invasions and insurrections” (Ordinances Passed at a Convention Held at the Town of Richmond, in the Colony of Virginia, on Monday the 17th of July, 1775, p. 3).

From this country’s founding in 1607, sedition was as much on the minds of the Anglo-American governing class as was tyranny. Despite what modern-day legislators such as Rep. Matt Gaetz (R-Fla.) believe:

It’s not about hunting. It’s not about recreation. It’s not about sports. The Second Amendment is about maintaining within the citizenry the ability to maintain an armed rebellion against the government, if that becomes necessary.
     I hope it never does.

(Rep. Matt Gaetz [R-Fla.], qtd. by Lisa Desjardins in her 5/28/2021 reporting for the PBS NewsHour, “Why Efforts to Establish a Commission to Investigate the Jan. 6 Insurrection Failed”)

U.S. citizens have no constitutional right to armed insurrection.

Indeed, the 21st-century rise of antigovernment militias such as the Oath Keepers (with military veterans and law enforcement officers in its ranks) would have greatly aggrieved the founding fathers of the United States. Among the first measures adopted by the American people in May 1777, following the transition from regal to republican government, was the act requiring that all free born males, above 16 years old, take “the oath or affirmation of allegiance and fidelity” to the new commonwealth, which included denouncing “all treasons or traiterous conspiracies which I now or hereafter shall know to be formed against this or any of the United States of America.” Moreover, this founding statute prescribing the oath of allegiance, enacted in the first year of the commonwealth, required that all those who refused to take the oath be reported “to the county lieutenant, or chief commanding officer of the militia, who is hereby authorised and directed forthwith to cause such recusants to be disarmed.”

An act to oblige the free male inhabitants of this state above a certain age to give assurance of Allegiance to the same, and for other purposes.

WHEREAS allegiance and protection are reciprocal, and those who will not bear the former are not entitled to the benefits of the latter, Therefore Be it enacted by the General Assembly, that all free born male inhabitants of this state, above the age of sixteen years, except imported servants during the time of their service, shall, on or before the tenth day of October next, take and subscribe the following oath or affirmation before some one of the justices of the peace of the county, city, or borough, where they shall respectively inhabit; and the said justice shall give a certificate thereof to every such person, and the said oath or affirmation shall be as followeth, viz. “I do swear or affirm, that I renounce and refuse all allegiance to George the third, king of Great Britain, his heirs and successours, and that I will be faithful and bear true allegiance to the commonwealth of Virginia, as a free and independent state, and that I will not, at any time, do, or cause to be done, any matter or thing that will be prejudicial or injurious to the freedom and independence thereof, as declared by congress; and also, that I will discover and make known to some one justice of the peace for the said state, all treasons or traiterous conspiracies which I now or hereafter shall know to be formed against this or any of the United States of America.” And the form of the said certificate shall be as follows, to wit: “I do hereby certify, that ____________________ hath taken and subscribed the oath or affirmation of allegiance and fidelity, as directed by an act of general assembly intituled An act to oblige the free male inhabitants of this state above a certain age to give assurance of allegiance to the same, and for other purposes. Witness my hand and seal, this _____ day of __________   /  A. B.”
     And be it farther enacted, That the justice of the peace before whom such oath or affirmation shall be subscribed shall keep fair registers of the names of the persons so sworn or affirmed, and the time when; and shall, on or before the first day of January in every year, transmit, in writing, under his hand and seal, to the clerk of the court of the county, city, or borough, a true list of the names of those who, within the same year, have so sworn or affirmed before them respectively.
     And be it farther enacted, by the authority aforesaid, That within one month after the passing of this act, or at the next succeeding court, the court of every county in this commonwealth shall appoint some of their members to make a tour of the county, and tender the oath or affirmation aforesaid to every free born male person above the age of sixteen years, except as before excepted; and that in the certificate directed to be returned, of those who take the oath or affirmation, shall be mentioned the names of such as refuse. And the justices tendering such oath or affirmation are hereby directed to deliver a list of the names of such recusants to the county lieutenant, or chief commanding officer of the militia, who is hereby authorised and directed forthwith to cause such recusants to be disarmed.
     Provided, That the person so disarmed shall, nevertheless, be obliged to attend musters, but shall be exempted from the fines imposed for appearing at such musters without arms, accoutrements, and ammunition.
     And be it farther enacted, That every person above the age before mentioned, except as before excepted, refusing or neglecting to take and subscribe the oath or affirmation aforesaid, shall, during the time of such neglect or refusal, be incapable of holding any office in this state, serving on juries, suing for any debts, electing or being elected, or buying lands, tenements, or hereditaments.
     And be it farther enacted, That all persons coming from any of the other United States into this state [Virginia] are hereby required to apply to one of the nearest justices after he enters this state, and take or subscribe an oath or affirmation, renouncing all allegiance to the king of Great Britain, and promising that he will not do any thing prejudicial to the independence of the United States of America, as declared by the general congress; and upon neglecting so to do, he shall be liable to be taken before a justice, who shall tender him the said oath or affirmation, and upon his refusal to take and subscribe the same, the said justice shall, and is hereby required, to commit him to the jail of the county, city, or borough, there to remain without bail or main-prize, until he shall take and subscribe the said oath or affirmation, or give bond and security immediately to depart this commonwealth, which bond shall be payable to the governour, for the time being, for the use of the commonwealth.
     Provided nevertheless, That prisoners of war, regular officers and soldiers in the pay of the continent or of this state, merchants and mariners trading in the ports of this state from foreign powers in amity with the United States, and not become resident, are declared not to be within the intent and meaning of this act.
     And be it farther enacted, That this act shall be publickly read by the sheriff of every county in this commonwealth at the door of the courthouse of his county, on some court day, on or before the first day of September next, and also by every minister of the gospel, or reader, immediately after divine service, at every church or meeting-house where they officiate, on some Sunday within the said time. And every sheriff, minister, or reader, failing so to do, shall forfeit and pay the sum of ten pounds, to be recovered, with costs, by the informer, before the court of the county where the offence shall be committed.

(Chap. III of the Militia Acts “passed by the General Assembly, begun and held at the Capitol, in the city of Williamsburg, on Monday, the fifth day of May, in the year of our Lord one thousand seven hundred and seventy seven, and in the first year of the Commonwealth”; Patrick Henry [yes, he of “Give me liberty, or give me death!” fame] was Virginia’s new governor, having been elected, and the members of the Privy Council chosen, the same day [29 June 1776] on which the state Constitution was adopted)

Given their postcolonial anxiety about “invasions and insurrections,” our founders’ response to the 6 January 2021 Capitol putsch, perpetrated in part by postmodern Oath Keepers, would have been swift and harsh, as had been the case 100 years earlier, with the pluto-populist uprising of 1676 known as Bacon’s Rebellion, which also led to multiple government-mandated investigations, intended to get at the root of the rebellion, and stamp out future insurrections. At the very least, anyone advocating “an armed rebellion against the government” — be they resident in or storming the halls of Congress — would have been disarmed by our founders, and all antigovernment militias disbanded.



facsimile of page printed in 1809, with the original text of the Second Amendment

^  Early printed text of the Second Amendment (originally Article IV) to the U.S. Constitution, entitled “Of the Militia; right to bear arms” (in marginalia at right). As printed in 1809 on p. 27 of The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619 (1st edn., 4 vols., 1809–1814, 1.27), edited by William Waller Hening (1767?–1828).
     Of note: Hening’s authoritative printing of the Second Amendment (Article IV) — published, only 17 years after its ratification by Virginia on 15 December 1791, in a reference work commissioned by the Virginia state legislature, and produced in collaboration with Thomas Jefferson, who shared with Hening his collection of 17th-century Virginia statutes — has only one comma (“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”).

facsimile of page printed in 1905, giving the text of the Second Amendment

^  The Second Amendment (Article II), as printed in the early 20th century on p. 417 of Constitutional Law in the United States (1st edn., 1905; rev. 2nd edn., 1910), by Emlin McClain (1851–1915).
     Of note: McClain’s printed version of the Second Amendment (Article II) — published over 100 years after its ratification by the states in 1791 — introduces two more commas to the text, resulting in 3 commas total (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”). Unfortunately, the added arbitrary commas have obscured the original meaning of the amendment for some modern readers.
     McClain’s own parsing of the amendment did not change, however, and the passage he used for textual analysis in Chapter 40 of his text on U.S. constitutional law for nonlaw students is the same one-comma clause printed by Hening in 1809 (“A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed”). See below for digital facsimile.
     There is a superfluity of commas in McClain’s printed version of the Third Amendment (Article III), also (“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”). (Emlin McClain, Constitutional Law in the United States, 1st edn., 1905, 417)
     Compare McClain’s use of four serial commas here with Hening’s more structured text, again printed in 1809, juxtaposing two commas and one semicolon: “No soldier shall in time of peace be quartered in any house, without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.” (The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, ed. W. W. Hening, 4 vols., 1st edn., 1809–1814, 1.28) Click/tap here to view a digital facsimile (110KB file) of p. 28, giving Hening’s 1809 printing of Amendments III (Article V) through VII (Article IX) to the U.S. Constitution.

facsimile of page printed in 1905, giving a variant Second Amendment

^  Variant of the Second Amendment, as printed in 1905 and 1910 on p. 311 of Constitutional Law in the United States (1st edn., 1905; rev. 2nd edn., 1910), by Emlin McClain (1851–1915).
     Of note: for his textual analysis of the Second Amendment in Chapter 40 of his text on U.S. constitutional law for nonlaw students, McClain alters the punctuation, here using only one comma, instead of the now usual three.
     McClain’s textual analysis of the hotly disputed Second Amendment reads in full: “The provision of the federal constitution that ‘A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed’ (Amend. II), and like provisions in state constitutions are evidently intended to guarantee the right of the people to form military organizations under lawful authority for a proper purpose. The federal guaranty would prevent any attempt on the part of Congress to render illegal the organization and discipline of a state militia, but such interference would be unconstitutional without this guaranty, for [...] the right of the state to maintain an organized militia is elsewhere recognized [U.S. Const. Art. I, § 8]. As an exercise of a civil right, the formation of military companies or bodies must depend for its lawfulness upon the state constitution and laws, and must be exercised in accordance with the law. Therefore, the state may prohibit the gathering of armed men for an unlawful purpose or in a manner likely to result in violation of law or in disorder and riot.  ¶   The state may also prohibit the carrying of arms by private individuals as an act imperilling the public peace and safety. In many states there are statutes making it a crime to carry concealed weapons, and such statutes are not regarded as unconstitutional.” (Emlin McClain, Constitutional Law in the United States, 1st edn., 1905, 311–312)
     The ease with which McClain moves between variant texts is requisite when working with historical documents, especially those issued both as scribal and print publications.
     Most importantly, as with Hening, McClain’s textual scholarship is authoritative.
     “An untiring scholar, McClain published A Treatise on the Criminal Law (2 vols., 1897) and contributed articles on diverse subjects such as law, legal history, and legal education to American Encyclopedia, Cyclopedia of Law and Procedure, Harvard Law Review, Yale Law Journal, Columbia Law Review, and other journals.” (Michael H. Hoffheimer, ANB entry for “McClain, Emlin (1851–1915), Judge and Legal Educator,” n. pag.)
     “McClain rose to prominence in the state bar with the publication of Annotated Statutes of Iowa (2 vols., 1880; supp. 1884; 2d ed., 1888; supp. 1892). The only consolidated compilation of the state laws since 1873 and the only annotated edition, this work was made an official source of state law by legislation enacted in 1882. He also published Iowa Digest (2 vols., 1887; supp. 1893, 1898, 1904), which summarized all reported state and federal cases from Iowa. Recognized as an authority on state law, he was selected by the Iowa Senate in 1894 to serve on the Code Commission, created to draft a comprehensive new code. With its adoption, McClain was retained to provide complete official annotations. Using his own annotated statutes as a model, he prepared official annotations for supplements in 1902, 1907, and 1913.” (M. H. Hoffheimer, n. pag.)
     “McClain was elected as a Republican to the Iowa Supreme Court and served as a justice from 1901 to 1906. He was reelected for 1907–1912 and served as chief justice for the years 1906 and 1912. His opinions were characterized by concise statement of legal issues, clear organization, and attention to judicial authority from other states.” (M. H. Hoffheimer, n. pag.)
     “McClain’s painstaking annotations and digests of Iowa law made the state’s growing body of cases and statutes accessible to practitioners. An energetic legal scholar and judge, he played a signal role in the movement to professionalize legal education. His high academic standards helped both the Iowa bar and the university rise to a position of national prominence in law that they have retained ever since. In his teaching and scholarship he helped assure the geographical spread of the case method in legal education.” (M. H. Hoffheimer, n. pag.)

facsimile of page printed at the turn of the 21st century, giving a modernized Second Amendment

^  Modernized Second Amendment (newly entitled “Right to bear arms”). As printed at the turn of the 21st century on p. 23 of the American Civil Liberties Union (ACLU) pocket version of The Constitution of the United States of America (n.p., n.d.).
     Of note: the modernized printed text of the Second Amendment (Amendment II) follows the three-comma version given on p. 417 of McClain’s Constitutional Law in the United States (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”), an arbitrary punctuation which has obscured the amendment’s original public meaning for some modern readers.
     The modern shift in meaning is clear in the accompanying change of title, from “Of the Militia; right to bear arms” (W. W. Hening, 1809, 1.27) to “Right to bear arms” (ACLU handbook, 23).

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