Keeping and Bearing of Arms
By the English & the Colonial Americans

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Assize of Arms (1181) Definition of Militia

    In medieval Europe the law defined a militia as "the whole body of freemen" between the ages of fifteen and forty years, who were required by law to keep weapons in defense of their nation.

Reference: Assize of Arms of 1181 in Bruce D. Lyon, ed., A Constitutional and Legal History of Medieval England, New York: Oxford University Press; 2d ed., 1980, 273. See also The Second Amendment and the Ideology of Self-Protection, Don B. Kates Jr and Historical Bases of the Right To Keep and Bear Arms, David T. Hardy.

English Thinking on Arms Leading Up to the Declaration of Rights in 1689

    The early Whig theorists unanimously stressed individual ownership of arms, the formation of a citizen army, and the limitation of standing armies as the basis of political freedom. They drew upon Sir Walter Raleigh, who wrote that among the "sophisms of a barbarous and professed tyranny" would be plans "to unarm his people of weapons, money and all means whereby they may resist his power," while the "sophistical or subtle tyrant" would plan "to unarm his people, and store up their weapons, under pretence of keeping them safe, and having them ready when service requireth."

Reference: W. Raleigh, Maxims of State, in The Works of Sir Walter Raleigh, Knt., Now First Collected 22, 25 (Oxford Univ. 1829).


    Algernon Sydney, a leading Whig thinker and politician executed by Charles II, counseled that "No state can be said to stand upon a steady foundation, except those whose whole strength is in their own soldiery, and the body of their own people," and more concisely, that in a proper commonwealth, "the body of the people is the public defense, and every man is armed."

Reference: Discourses Concerning Government, Algernon Sidney, 156-57 (CHAPTER TWO, SECTION 21 Mixed and Popular Governments preserve Peace, and manage Wars, better than Absolute Monarchies) (3d ed. London 1751) (Library of Congress Rare Books Collection).

Declaration of Rights (1689)

    That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

Colonial Practice in America

    A publication entitled An Abstract of the Laws of New England as They are Now Established concluded that for the best protection of the county, "First, a law [is] to be made for the training of all the men in the country fit to bear arms, unto the exercise of military discipline .  .  .  ."  The only other measure suggested for colonial defense was "and withal, another law to be made for the maintenance of military officers and forts."

Reference: ed. by William Aspinwall.  An Abstract of the Laws of New England as They are Now Established, London: Aspinwall, 1641, chapter 3


    After Bacon's Rebellion in 1676, Virginia Governor William Berkeley had cause to describe his misery at governing "a people where six parts of seven at least are poore, indebted, discontented and armed."

Reference: D. Boorstin,  The Americans: The Colonial Experience (1958) at 353.


    Lord Baltimore, the founder of Maryland, published a list defining the required equipage of settlers to his colony.  The list has the broad categories titled "IN VITUALLS", "IN APPARRELL", "IN TOOLS", "HOUSEHOLD IMPLEMENTS", "IN ARMS", and "IN BEDDING".  The part of the list dealing with arms is:

   For one man,
Item, one musket
Item, one sword
Item, 10 pounds of Powder
Item, one belt
Item, 40 pounds of Lead, Bullets, Pistoll
   and Gosse shot, of each sort some
Item, one bandellere and flaske
Item, in Match

The costs the items are shown in the version of Baltimore's list published by Hall; ARMS amount to 10% of the budget for the total equipage. By comparison, APPARRELL amounted to 20% of equipage.

    Baltimore's list, according to Hall, recommends optional provisions which include firearms. Under "PROVISION FOR FISHING AND FOWLING," Baltimore lists "Fowling-pieces of sixe foote; Powder and Shott, and Flint Stones".

Reference: Tercentenary History of Maryland, Vol. I, Matthew Page Andrews, at 146-150, S. J. Clarke Publishing Co., Chicago and Baltimore (1925).
Reference: Narratives of Early Maryland 1633-1684, Clayton C. Hall, at 91-100.

    In 1638/39 Maryland's Assembly passed an "act for military discipline which required all able bodied inhabitants of the colony to be thoroughly prepared against attack, subject to inspection of a sergeant or marshall once in every month."

Reference: Archives of Maryland, ed. W. H. Browne and others. 72 vols to date. Annapolis: State of Maryland, 1883-1912, 1 p77

    In Maryland the militia was divided, according to the European manner, into the general militia, including all free male inhabitants between ages 16 and 60, and the Trained Bands, consisting of specially trained and fully armed citizen-soldiers.  Each citizen bore the cost of bearing arms himself.  There was a "clawse enjoyning every person to bring a good fixed Gunn .  .  .  to the trayning .  .  .  for the service of the Lord Propy [proprietor]."

Reference: Archives of Maryland, ed. W. H. Browne and others. 72 vols to date. Annapolis: State of Maryland, 1883-1912, Proceedings of the Council of Maryland, 1654-1657 3 p317 & 3 pp345-46; 7 p18 (links available from the Archives of Maryland web site).

    When Maryland in 1692 enacted a militia statute based on the 1662 [Militia] Act [of Parliment], it added a provision that no "persons whatsoever shall presume at any time to seize, press or carry away from the inhabitant resident in this province any arms or ammunition of any kind whatsoever .  .  .  any law, statute or usage to the contrary notwithstanding."

Reference: Archives of Maryland, 13, Proceedings and Acts of the General Assembly of Maryland, April 1684-June 1692, at p557, ed. W. H. Browne (1894).

    On the eve of the American Revolution the second session of the Maryland Convention convened on December 8, 1784 and passed several resolutions. One declared that "a well regulated militia, composed of the gentlemen, freeholders, and other freemen, is the natural strength and only stable security of a free government." Another resolution adopted that the purpose of Maryland is to support Massachusetts or any other colony against illegal taxation or it execution by force to the utmost. These two showed Maryland was determined to meet force in kind and that intent was clear despite the piously filial expression included with the resolutions to relieve tension; viz. that the organization of "such militia will relieve our mother country from any expense in our protection and defence; will obviate the pretence of a necessity for taxing us on that account, and render it unnecessary to keep any standing army (ever dangerous to liberty) in this province."

The convention also "recommended to such of the said inhabitants .  .  .  as are of from sixteen to fifty years of age to form themselves into companies of sixty-eight men, .  .  . "

Reference: Tercentenary History of Maryland, Vol. I, Matthew Page Andrews, at 557, S. J. Clarke Publishing Co., Chicago and Baltimore (1925).


    One of the few sympathetic British officers noted the skill with which the New England militiamen handled their firearms.  "Some Lads about 13, 14 and 15 years old .  .  .  can shoot a Bird flying with any man in this Province.  This adds to the Martial Spirit which seems to run through the whole of the country people."  He judged that many of these young sharpshooters would willingly join in an expedition against the French and their Amerindian allies.

Reference: The Public Advertiser, 3 October 1755, London as cited in Vol 1. Introduction to the American Colonial Militia, James Biser Whisker from The Colonial American Militia, 1606-1785: An Introduction

    When the letter from Congress authorizing the enlisting of two companies of Maryland "light infantry" had reached Frederick, it was resolved that the companies be raised immediatedly, the first to be under the command of Captain Michael Cresap, with Thomas Warner, Joseph Cresap, Jr., and Richard davis, Jr., lieutenants; the second to be under Thomas Price, captain; with Otho Holland Williams and John Ross Key as lieutenants. {Michael Cresap has but recently returned from active Indian fighting in what may be called the first step towards the acquisition by the United States of the great Northwest, the second step being the expedition of George Rogers Clark, and the third and last the donation of that territory by Virginia, in deference to the insistence of Maryland; for Maryland, as will be seen, refused to accede to the first Union until this territory was so ceded.  Michael Cresap had been falsely accused of murdering the family of Chief Logan (Cf. Brantz Mayer's Tah-Gah-Jute, and Jacob's Life of Cresap).  He was the youngest son of Colonel Thomas Cresap.}

    Apparently there was magic power in the Cresap name; so that the mere word that Michael Cresap was to command one of these companies brought daring riflemen 100 miles and more from the farthest reaches of western Maryland.  They had left behind in the forest their families and their all to march to the far-distant camp at Cambridge.

    Not to be outdone, the nearby Virginians were organizing under Captain Daniel Morgan at Morgan's Spring only twenty-five miles away.  The rival companies of Virginia and Maryland riflemen met at Frederick, and it became a point of pride as to which company should beat the others in the race to be the first at Boston.  In Force's American Archives there is to be found a "letter to a gentleman in Philadelphia" dated Fredericktown, August 1, 1775, which thus describes the appearance of Cresap and his men: "I have had the happiness of seeing Captain Michael Cresap marching at the head of a formidable company of upwards of one hundred and thirty men from the mountains and back woods, painted like Indians, armed with tomahawks and rifles, dressed in hunting-shirts and moccasins."  The writer, himself perhaps a visiting Philadelphian of the then "effete East," was particularly amazed at a special display of the marksmanship of these men, described as follows: "A clap-board, with a mark the size of a dollar, was put up; they began to fire off-hand, and the by-standers were surprised, few shots being made that were not close to or in the paper.  When they had shot for a time in this way, some lay on their backs, some on their breast or side, others ran twenty or thirty steps, and firing, appeared to be equally certain of the mark."

    Although Cresap was then in such ill health that he fell a victim to a fever less than three months later, his company was among the first to reach Cambridge.  Cresap and Morgan marched together from Cambridge to Roxbury and their arrival was described by Thacher, in part, as follows: "They are remarkably stout and hardy men; many of them exceeding six feet in height.  * * * They are now stationed on our lines, and their shot have frequently proved fatal to British officers and soldiers who expose themselves to view even at more than double the distance of common musket shot."


Reference: Tercentenary History of Maryland, Vol. I, Matthew Page Andrews, at 542-544, S. J. Clarke Publishing Co., Chicago and Baltimore (1925).

    According to Sawyer in Firearms in American History, the long rifle of the Maryland, Virginia, and Pennsylvania frontiersmen should go down in historical narrative with the various appliances which, form time to time, have revolutionized warfare; such as the scythe-chariot, the mass-phalanx, the yew-bow, the pilus, the cavalry horse, and cannon. The long rifle was an American invention, the effective development of which began about the middle of the eighteenth century. This rifle deserves to rank with the foregoing death dealing agencies for the reason that it was the first such weapon to assure, if properly handled, a straight shot at a distant foe.

    In the British regular army there were no such effective riflemen. The government hired some hundreds of mercenaries from Germany and Switzerland, but their rifles did not shoot so accurately. In their case the bullets were flattened by hard ramming and the barrels had no rear sight. On the other hand, the American backwoodsman had evolved the use of a small square of greased rag (cut very carefully to uniform size and kept ready in a little box), which caused the bullet to slip down easily. The insertion of the rag made the part in which the powder lay airtight, giving better explosion. This long rifle, when once found reliable, was carefully, even affectionately, kept in order and handed down from father to son. When not in use it hung over the great fireplace in the home which it protected.

    The British regulars with their wild-shooting muskets were not accustomed to aiming; they held the gun horizontally and pulled the trigger. If there happened to be a regiment in front within a hundred yards, they might easily do some execution; but, when they sought decisive results, they charged with their bayonets.[Andrew's Note: Lossing's Fieldbook, Vol. II, p. 237, says that at Princeton the American riflemen after firing three times, were obliged, not having bayonets, to run for it, til they reached the Continental line, when the turned about and faced the enemy again.]

    As soon as he took command of the Continental forces, General Washington summoned the "Long Rifles" from the frontiers of the Middle States, and "began to teach the haughty British officer" a due regard for this new weapon of warfare. While some of the "Long Rifles" were clearing the mountain slopes of hostile Indians, others were drawn into the American service in the Southern States in great numbers, until under their great backwoodsman leader, Daniel Morgan, and other commanders they had helped to drive the British regulars and American Tories out of the Carolinas and had closed upon Cornwallis at York Town.[Andrew's Note: Just what the introduction of the "long rifle" into the sphere of war meant can best be seen from a consideration of the battle of New Orleans in 1815, where behind breast works (which compensated for the lack of bayonets) a force of "hunting-shirt men" from the backwoods stood off in battle onslaught a superior number of regular British troops -- some of whom had taken part in the attack upon Baltimore, together with several crack regiments fresh from victory over Napoleon's generals. In 25 minutes these riflemen had killed or disabled 2,000 of the British, losing only 71 killed and wounded. A few months later, these British regiments withstood and defeated Napoleon at Waterloo.]

Reference: Tercentenary History of Maryland, Vol. I, Matthew Page Andrews, at 564-565, S. J. Clarke Publishing Co., Chicago and Baltimore (1925).


    Benjamin Franklin defined the militia as a voluntary association of extra-governmental armed troops acting under their own authority.  Franklin wrote that a militia is a "voluntary Assembling of great Bodies of armed Men, from different Parts of the Province, on occasional Alarm, whether true or false, .  .  .  without Call or Authority from the Government, and without due Order and Direction among themselves .  .  .  which cannot be done where compulsive Means are used to force Men into Military Service.  .  .  .

Reference: Benjamin Franklin, "Comments on the Pennsylvania Militia Act of 1755," in Ralph Ketcham, ed., The Political Thought of Benjamin Franklin, Indianapolis, In.: Liberty Classics, 1965, 127-30.


    Sir Charles Hardy in 1756 complaining about colonial militiamen electing their own officers: Pray, my Lord, where have these men come from?  Under the vote for raising the Men .  .  .  the Men have it in their own Choice & are supported in it by a law of the Colony from whence they came, and the Consequence is plain .  .  .  .  The present Method is attendant with great Delays .  .  .  .  Captains of the Regulars will think it hard to be commanded by Field Officers of the Provincials & the Field Officers will likewise think so in having them on equal foot .  .  .  .  All Men raised in the Provinces for his Majesty's Service should be raised by the Commander in Chief who may give blank Commissions in such Numbers he thinks proper, to the several Governors, to fill up with the Names of such Persons as may be qualified .  .  .  .

Reference: Sir Charles Hardy to the Earl of Halifax, dated 7 May 1756, in Stanley Pargellis, editor. Military Affairs in North America, 1748-1756. Hampden, Ct.: Anchor, 1969, 172.


    The Boston Evening Post editorialized that so great were the offenses of the military conservators that in Boston there had been "a late vote of council of this town calling upon the inhabitants to provide themselves with arms for their defence."  It thought that this was "a measure as prudent as it was legal" because "it is a natural right which the people have reserved to themselves, conformed by the [English] Bill of Rights, to keep arms for their own defence."

Reference: Boston Evening Post, quoted by the New York Journal, Supplement, 27 April 1769.


    Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can.  These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature.

Reference: The Rights of the Colonists, Samuel Adams, The Report of the Committee of Correspondence to the Boston Town Meeting, Nov. 20, 1772


    And has ever since their departure been breaking out with greater violence after their embarkation.  One of their justices, most thoroughly acquainted with the people and their intentions, on the trial of a man of the 14th Regiment, openly and publicly in the hearing of great numbers of people and from the seat of justice, declared "that the soldiers must now take care of themselves, nor trust too much to their arms, for they were but a handful; that the [Boston] inhabitants carried weapons concealed under their clothes, and would destroy them in a moment, if they pleased".  This, considering the malicious temper of the people, was an alarming circumstance to the soldiery.  Since which several disputes have happened between the townspeople and the soldiers of both regiments, the former being encouraged thereto by the countenance of even some of the magistrates, and by the protection of all the party against government.

Reference: Captain Thomas Preston's Account of the Boston Massacre, 13 march 1770, Department of Alfa-informatica, University of Groningen


    Burgh devoted an entire chapter of his Political Disquisitions to the Militia-Army issue. "No kingdom can be secured otherwise than by arming the people," Burgh wrote, adding, "The possession of arms is the distinction between a freeman and a slave." Writing on the eve of the American Revolution, Burgh argued that the emerging conflict was itself a product of ignoring these principles.

The confidence which a standing army gives a minister, puts him upon carrying things with a higher hand than he would attempt to do if the people were armed and the court [royal officials] unarmed, that is, if there were no land force in the nation, but a militia.  Had we at this time no standing army, we should not think of forcing money out of the pockets of three millions of our subjects. We should not think of punishing with military execution, unconvicted and unheard, our brave American children, our surest friends and best customers .  .  .  . We should not--but there is no end to observations on the difference between the measures likely to be pursued by a minister backed by a standing army, and those of a court awed by the fear of an armed people.

 

Reference: 2 James Burgh, Political Disquisitions: An Enquirey into Public Errors, Defects and Abuses (London 1774, reprinted 1971) 345, 390, 476 and at 475-76.  Cited in ARMED CITIZENS, CITIZEN ARMIES: TOWARD A JURISPRUDENCE OF THE SECOND AMENDMENT, David T. Hardy


    After the Revolution began, the British decided that victory would prevent any future armed conflict with the colonists over the payment of taxes or for any other cause.  The British government had planned to disarm the Americans completely, had they won the war of the American Revolution.  In 1777 the British cabinet, confident of impending victory, intended to abolish the militia.  The cabinet had planned that, "The Militia Laws should be repealed and none suffered to be re-enacted and the Arms of All the People should be taken away .  .  .  .  nor should any Foundry or Manufactory of Arms, Gunpowder or Warlike Stores, be ever suffered in America, nor should any Gunpowder, Lead, Arms or Ordnance be imported into it without Licence."

Reference: Sources of American Independence, ed. H. Peckham. 2 vols. Chicago: University of Chicago Press, 1978, 1: 176.


    In a statement to the U. S. Senate, Professor Joyce Lee Malcolm gave the history of the origins of the Second Amendment ---  

    Since medieval times ordinary Englishmen had been legally required to keep weapons for individual defence and to fulfill their peacekeeping duties.  In the late seventeenth century this duty became a right.  Englishmen had become thoroughly alarmed when Charles II and James II began to disarm their political opponents and to increase the size of their army.  James's flight in 1688 provided an opportunity to shore up and expand popular rights before installing a new monarch.  The resulting Bill of Rights included the guarantee that "the Subjects, which are Protestants, may have Armes for their defence Suitable to their Condition and as allowed by Law."  Although this language left room for restrictions to be imposed, legal experts and court decisions in the years that followed make it crystal clear that the typical Englishmen had a right to keep firearms.  Writing just prior to the American Revolution, William Blackstone saw this as a right designed to "protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property."  In language the Philadelphia Federal Gazette was to echo, he also argued that their private weapons would enable the people "to restrain the violence of oppression."  In 1780 London's legal adviser explained:

    The right of his majesty's Protestant subjects, to have arms for their own defence, and to use them for lawful purposes, is most clear and undeniable .  .  .  And that right, which every Protestant most unquestionably possesses, individually, may, and in many cases must, be exercised collectively .  .  .  .  In 1819, Justice Bayley made the same point.  "But are arms suitable to the condition of people in the ordinary class of life, and are they allowed by law?" he asked, and answered, "a man has a clear right to arms to protect himself in his house.  A man has a clear right to protect himself when he is going singly or in a small party upon the road where he is travelling or going for the ordinary purposes of business."


Reference: "Senate Committee on the Judiciary on Whose Right to Keep and Bear Arms? The Second Amendment as a Source of Individual Rights," Sept. 23, 1998.


Updated by Phil Lee on 5/18/02.  Contact maryland_alert at yahoo dot com (sorry for being obscure, but web mail address scavenge programs make this practice necessary).