Like many a good Christian, pseudo-historian David Barton likes guns and, of course, thinks that every person in America has an unlimited constitutional — and biblical — right to own and carry them.
Barton, not surprisingly, has been saying some pretty wild things on the subject recently, many of them on Glenn Beck’s web-based TV show, where he went beyond advocating that teachers be armed, saying that the students should be armed, telling this story about an attempted school shooting in the 1850s:
“The great example, in the 1850s you have a school teacher who’s teaching. A guy — he’s out in the West — this guy from New England wants to kill him and find him. So he comes into the school with his gun to shoot the teacher, he decides not to shoot the teacher because all the kids pull their guns out and point it at him and say, ‘You kill the teacher, you die.’ He says, ‘Okay.’ The teacher lives. Real simple stuff.”
On his own radio show as well as Beck’s show, Barton made the incredible claim that gun accidents were virtually unheard of in the founding era, saying:
“I have searched and in the founding era I think I’ve only ever found two gun accidents and everybody was hauling guns back then. You took your guns to church, you were required by state law in some states to take your guns to church. We didn’t have accidents because everyone was familiar with how to use them.”
Barton gives no source for his story about those gun-toting kids of the 1850s saving their teacher, making that story impossible to fact check, but many of the other things he’s been saying can be checked. This is because they’re based on quotes that can be found in his 2000 book, The Second Amendment: Preserving the Inalienable Right of Individual Self-Protection, which, of course, contains a plethora of those footnotes he’s famous for.
Barton begins his book with the typical arguments — the all-or-nothing argument that people who support gun control laws think that only the police and the military should be able to have guns, and the argument that any laws whatsoever regulating an individual’s right to own guns are unconstitutional.
Barton divides the historical quotes he uses in his book into four chapters — I. Early Legal Commentaries, II. Views of the Founding Fathers, III. Early Legislative Acts, and IV. State Constitutions — saying:
“These four categories of information will indisputably demonstrate that a citizen’s right to keep and bear arms is an individually guaranteed right and that efforts to restrict or regulate gun possession by ordinary law-abiding citizens — no matter what “humanitarian” or alleged “historical” arguments might undergird such efforts — are unequivocal violations of the explicit protections and original intentions of the Constitution.”
It would be impossible to cover in a blog post all of the quotes presented by Barton in his book, so I’ve chosen a handful from each chapter, paying particular attention the ones relevant to the big question today: Are laws regulating guns unconstitutional?
Even with limiting this post to only some of the quotes used by Barton, it is still unusually long for a blog post. This is unavoidable since, in order to put Barton’s out-of-context and butchered quotes back in context, it’s necessary to quote some fairly lengthy passages from the sources of these quotes. I realize that most people won’t have time to read the entire thing, but hope that they’ll at least look at enough of the examples to get an idea of how badly Barton distorts history to support his claim that his book will prove that the founders would have found any laws regulating guns to be “unequivocal violations” of the Constitution.
I. Early Legal Commentaries
Before actually getting to his quotes from early legal commentaries, Barton explains that “a common error in constitutional interpretation is the failure to examine a document according to its original meaning,” and presents a bunch of quotes from the founders that have nothing to do with the Second Amendment or guns, but merely say that it’s important to know what was meant by things at the time that they was written. I couldn’t agree more.
So, let’s look at what the term “to bear arms” meant at the time that the Second Amendment was written. Would this term have been used in 1789 to mean an individual right of self-protection as Barton claims? Well, no. Up until the modern-day debates over gun control, the words “to bear arms” were interpreted to mean one thing and one thing only — to serve in a military capacity.
Early dictionary definitions of the term “to bear arms” are clear. Every dictionary from the 1800s and earlier that contained a definition of the specific term “to bear arms” defined this term as meaning to be a soldier. A New English Dictionary on Historical Principles, for example, published in both England and America in 1888 with the stated aim to “furnish an adequate account of the meaning, origin, and history of English words no in general use,” defined “to bear arms” as: “to serve as a soldier, do military service, fight.”(1)
Individuals who attempted to use the Second Amendment or the similar provisions in their state constitutions to argue that the right to “bear arms” meant they had the right to carry any weapon in any manner that they chose were not successful. As Justice Nathan Green, who served on the Tennessee Supreme Court from 1831-1852 made it clear in his opinion in the 1840 case of Aymette v. The State of Tennessee, bearing arms and carrying weapons were not synonymous:
“A man in pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms.“(2)
Barton then presents a batch of quotes from the founders explaining what an “inalienable right” is, saying that “before establishing that the Second Amendment was intended to secure an individual’s right ‘to keep and bear arms’ as an inalienable right, it is important to establish just what an inalienable right is.” He still hasn’t presented any quotes having to do with the Second Amendment or guns, but concludes from his generic quotes about etymology and inalienable rights:
“That the Second Amendment simply secured in writing a right which God had already conferred on His creation was confirmed in the legal commentaries that undergirded American law.”
Barton then finally gets to his quotes from early legal commentaries, beginning with William Blackstone’s 1766 Commentaries on the Laws of England. As he often does when quoting this work, Barton leaves off the “of England” part of the title, simply calling it Blackstone’s Commentaries on the Laws, and saying how widely used it was in America, giving his readers the impression that this was an American law book. But even this work on the laws of England has to be misquoted by Barton to make it say what he wants it to say — that bearing arms was considered an absolute right that could never be regulated by any other laws.
From Barton’s book:
“Concerning the right of citizens to own and use arms, Blackstone’s declared:
“‘The … right of the [citizens] that I shall at present mention, is that of having arms for their defense. … [This is] the natural right of resistance and self-preservation when the sanctions of society and laws are found insufficient to restrain the violence of oppression…. [T]o vindicate these rights when actually violated or attacked, the [citizens] are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the [government] for redress of grievances; and lastly, to the right of having and using arms for self-preservation and defense.’”
Now, here are the two passages from Blackstone’s that Barton combines and edits to construct that quote. As you can see, what Barton did here was simply to chop out the parts (bolded here) where Blackstone said that the right of individuals to own arms only went as far as was “allowed by law”:
“The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. st. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”(3)
“And, lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next to the right of petitioning the king and parliament for redress of grievances; and lastly to the right of having and using arms for self-preservation and defense. And all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints.”(4)
And, here’s what the act from 1 W. & M. referenced by Blackstone said (emphasis mine):
“That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law.”(5)
So, without Barton’s editing, Blackstone’s, which Barton calls “the most influential legal commentary at the time of the framing of the Second Amendment,” said that the “natural right” to own arms for “self-preservation” could indeed be limited by “laws,” “restrictions,” and “restraints.”
Barton’s next example comes from the law lectures of James Wilson, who, in addition to teaching law in Pennsylvania, was one of the framers of the Constitution and one of the original U.S. Supreme Court justices.
According to Barton:
“Not only did the Second Amendment secure what Blackstone had called ‘the right of having and using arms’ for ‘the natural right of resistance and self-preservation’ but our Founders further believed that it was a duty for every citizen to be willing to exercise that right when necessary. This was made clear by James Wilson, who declared:
“‘Homicide is enjoined [required] when it is necessary for the defense of one’s person or house. … [I]t is the great natural law of self-preservation which, as we have seen, cannot be repealed or superseded or suspended by any human institution. This law, however, is expressly recognized in the constitution of Pennsylvania: ‘The right of the citizens to bear arms in the defense of themselves shall not be questioned.’… [E]very man’s house is deemed, by the law, to be his castle; and the law, while it invests him with the power, [places] on him the duty of the commanding officer [of his house]. ‘Every man’s house is his castle … and if any one be robbed in it, it shall be esteemed his own default and negligence.”” (emphasis Barton’s)
What Barton is quoting from here, as he does for several of his examples, is what James Wilson wrote about homicide. Wilson began with two types of what he classified as “enjoined” homicide — the first related to militia or military service, and the second related to defending oneself or ones personal property. It was in his first example, the one relating to militia or military service:
“1. Homicide is enjoined, when it is necessary for the defence of the United States, or of Pennsylvania. At present, it is not necessary for me, and, therefore, I decline to examine the general and very important subject concerning the rights of war. I confine myself merely to that kind of war, which is defensive: and even that kind I now consider solely as a municipal regulation, established by the constitution of the nation, and that of this commonwealth.
“The constitution of the nation is ordained to ‘provide for the common defence.’ In order to make ‘provision’ for that defence, congress have the power to ‘provide for arming the militia,’ and ‘or calling them forth,’ ‘to repel invasions:’ they have power ‘to provide a navy,’ ‘to raise and support armies,’ ‘to declare war.’ Whenever the primary object, ‘the common defence,’ renders it necessary, the power becomes the duty of congress: and it requires no formal deduction of logick to point to the duty, when necessity shall require, of military bodies, ‘raised, supported, and armed.’ In Pennsylvania, it is explicitly declared upon the very point, that ‘the freemen of this commonwealth shall be armed for its defence.’
“2. Homicide is enjoined, when it is necessary for the defence of one’s person or house.
“With regard to the first, it is the great natural law of self preservation, which, as we have seen, cannot be repealed, or superseded, or suspended by any human institution. This law, however, is expressly recognised in the constitution of Pennsylvania. ‘The right of the citizens to bear arms in the defence of themselves shall not be questioned.’ This is one of our many renewals of the Saxon regulations. ‘They were bound,’ says Mr. Selden, ‘to keep arms for the preservation of the kingdom, and of their own persons.’
“With regard to the second; every man’s house is deemed, by the law, to be his castle; and the law, while it invests him with the power, enjoins on him the duty, of the commanding officer. ‘Every man’s house is his castle,’ says my Lord Coke, in one of his reports, ‘and he ought to keep and defend it at his peril; and if any one be robbed in it, it shall be esteemed his own default and negligence.’ For this reason, one may assemble people together in order to protect and defend his house.”(6)
See what Barton did there? By chopping out the words “With regard to the first,” and “With regard to the second” and then running together selected sentences from the two separate paragraphs, he has James Wilson saying that it was the constitution of Pennsylvania that gave an individual the right to defend their house, although Wilson attached the constitutional right to bear arms, in both the U.S. and Pennsylvania constitutions, to his first example — service in the military or the militia.
Now, Wilson obviously wasn’t saying that an individual didn’t have the right to defend their house; it’s just that his legal basis for this right was not the Pennsylvania constitution, but other laws. And Wilson tells us in his footnotes exactly what the sources of these other laws were. So, let’s take a look at where James Wilson said the right to defend ones house came from.
Wilson’s sources were English jurists Sir Edward Coke (1552-1634) and Sir Matthew Hale (1609-1676).
It’s from Coke that we get the now familiar phrase “every man’s house is his castle.” Wilson cited Coke’s Reports for this. Coke’s Reports were reports on specific cases, but it was Coke’s Institutes on the Laws of England, the work that most of the founders learned the law from, where Coke explained this in more detail, so that’s what I’m going to quote from here.
The chapter of Coke’s Institute’s where he wrote that “a man’s house is his castle” is titled “Against going or riding armed.” As its title indicates, this chapter is about a law restricting the carrying of arms. It was in here that Coke explained what the exceptions to this restriction were, one of which was defending ones home:
“And yet in some case a man may not onely use force and armes, but assemble company also. As any may assemble his friends and neighbours, to keep his house against those that come to rob, or kill him, or to offer him violence in it, and is by constuction excepted out of this act; for a mans house is his castle …”(7)
But Coke made it clear that this exception applied only to a man’s own home, continuing:
“But he cannot assemble force, though he be extreamly threatned, to go with him to church, or market, or any other place, but that is prohibited by this act.”(8)
The other source cited by Wilson was Sir Matthew Hale’s Pleas of the Crown. Hale put the right of a man to defend his own home in his chapter titled “Of burglary, the kinds, and punishment,” writing:
“I come to those crimes that specially concern the habitation of a man, to which the laws of this kingdom have a special respect, because every man by the law hath a special protection in reference to his home and dwelling.”(9)
And, just like Coke, Hale continued by saying that this applied only to a man’s own home:
“And that is the reason, that a man may assemble people together for the safeguard of his own house, which he could not do in relation to a travel, or a journey.”(10)
So, both Coke and Hale, the sources cited by James Wilson — a framer of the Constitution and an original U.S. Supreme Court justice — said that the carrying of arms could be regulated by laws. If America were to revert today to the laws cited by Wilson, it would be illegal virtually across the board to carry guns in public. It would also be illegal for any private militia group to assemble with arms for any reason other than to protect someone’s home. Looks like Barton’s first two early legal commentary examples not only don’t support his position, but completely contradict it.
Barton goes on to quote a number of other early legal commentaries, carefully editing out anything that would reveal that what he’s quoting was either about homicide laws or the militia, turning them into quotes that appear to be about an individual’s right to be armed.
To show how far Barton goes in his editing of some of these early legal commentary quotes to make them appear to be about individual rights rather than the militia, let’s look at what he quotes from William Rawle’s 1825 work, A View of the Constitution of the United States of America.
Here’s how Barton quotes Rawle:
“In the Second [Amendment], it is declared…. that ‘the right of the people to keep and bear arms shall not be infringed.’ The prohibition is general. No clause in the Constitution could, by any rule of construction, be conceived to give the Congress a power to disarm the people. a flagitious [flagrantly wicked] attempt could only be made under some general pretense by a State legislature. But if, in any blind pursuit of inordinate power, either [the State or federal government] should attempt it, this Amendment may be appealed to as a restraint on both.” (emphasis Barton’s)
Now, here’s the unedited version, with the big chunk edited out by Barton in bold:
“In the second article, it is declared, that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrections, and to preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest.
“The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.
“The prohibition is general. No clause in the Constitution could, by any rule of construction, be conceived to give the congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.”(11)
So, William Rawle, in the part of the quote chopped out by Barton, said that the second part of the Second Amendment was a “corollary” from the first part — that the “right of the people to keep and bear arms” referred to “a well regulated militia.”
Rawle then went on to separately address an individual’s right to be armed, saying that there were laws limiting this right:
“This right ought not, however, in any government, to be abused to the disturbance of the public peace.
“An assemblage of persons with arms, for an unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace. If he refused he would be liable to imprisonment.”(12)
Barton gives a bunch of other similarly irrelevant or similarly butchered examples from legal commentaries of the 1800s, and then jumps to a quote from a U.S. Senate committee report to end his chapter on “early” legal commentaries, writing:
Clearly, legal commentaries and commentators across the centuries agreed: there was an inherent, natural right of self-defense and self-preservation of which the “right to keep and bear arms” was intrinsic, belonging to every individual. In fact, the Senate Judiciary Committee has even noted:
“The proposal [for the wording of the Second Amendment] finally passed the House in its present form: ‘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.’ In this form it was submitted into the Senate, which passed it the following day. The Senate in the process indicated its intent that the right be an individual one, for private purposes, by rejecting an amendment which would have limited the keeping and bearing of arms to bearing for the common defense…. The conclusion is thus inescapable that the history, concept, and wording of the Second Amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.” (emphasis Barton’s)
What Barton neglects to mention about this quote (except in his endnote) is its date. This is not an historical quote like the quotes it immediately follows. It’s not from a from a Senate committee from time of the founders or the 1800s. It’s a quote from the modern-day gun control debate — from a 1982 report of a subcommittee chaired by Senator Orrin Hatch.
II. Views of the Founding Fathers
In this section, Barton gives about twenty quotes from various founders — almost none of which, when put back in context, have anything to do with an individual’s right to own guns.
Some were referring to taking up arms against England. For example, Barton quotes George Washington as saying:
“[N]o man should scruple or hesitate a moment to use arms in defense.”
Barton plucks this one from a letter written by Washington to George Mason in 1769 about the British restricting American trade. This is the whole paragraph from that letter:
“That no man shou’d scruple, or hesitate a moment to use a-ms in defence of so valuable a blessing, on which all the good and evil of life depends; is clearly my opinion; yet A-ms I wou’d beg leave to add, should be the last resource; the denier resort. Addresses to the Throne, and remonstrances to parliament, we have already, it is said, proved the inefficacy of; how far then their attention to our rights and priviledges is to be awakened or alarmed by starving their Trade and manufactures, remains to be tryed.”(13)
Barton quotes John Adams as saying:
“Resistance to sudden violence for the preservation not only of my person, my limbs, and life, but of my property, is an indisputable right of nature which I never surrendered to the public by the compact of society and which, perhaps, I could not surrender if I would…. [T]he maxims of the law and the precepts of Christianity are precisely coincident in relation to this subject.”
Where Barton gets this quote from is one of three essays written by anonymously by Adams and published in the Boston Gazette in 1763. Adams was having a debate in the press with Jonathan Sewall, who was also writing anonymously, and a couple of other anonymous writers who joined in, identifying themselves as “X” and “W.” What prompted this debate was a fist fight between two members of the Massachusetts Governor’s Council (one of whom Adams represented in court) over a remark that one made about the other and refused to apologize for. So, the incident that prompted Adams’s more general comments on self-defense had nothing to do with guns; it was a fist fight.
Here’s the part of Adams’s essay from which Barton plucks his quote (with the parts omitted by Barton in bold):
“… I shall agree with the first of these gentlemen, that “to preach up non-resistance, with the zeal of a fanatic,” would be as extraordinary as to employ a bastile in support of the freedom of speech or the press, or an inquisition in favor of liberty of conscience; but if he will leave his own imagination, and recur to what I have written he will not find a syllable against resistance. Resistance to sudden violence, for the preservation not only of my person, my limbs and life, but of my property, is an indisputable right of nature which I never surrendered to the public by the compact of society, and which, perhaps, I could not surrender if I would. Nor is there any thing in the common law of England (for which Mr. X supposes I have so great a fondness,) inconsistent with that right. On the contrary, the dogmas of Plato, the maxims of the law, and the precepts of Christianity, are precisely coincident in relation to this subject.”(14)
Adams went on in this essay to say:
“Now the common law seems to me, to be founded on the same great principle of philosophy and religion. It will allow of nothing as a justification of blows, but blows; nor will it justify a furious beating, bruising, and wounding, upon the provocation of a fillip of the finger, or a kick upon the shins; but if I am assaulted, I can justify nothing but laying my hands lightly upon the aggressor for my own defence; nothing but what was absolutely necessary for my preservation. I may parry, or ward off, any blow; but a blow received is no sufficient provocation for fifty times so severe a blow, in return. When life, which is one of the three favorites of the law, comes into consideration, we find a wise and humane provision is made for its preservation. If I am assaulted by another, sword in hand, and if I am even certain of his intention to murder me, the common law will not suffer me to defend myself by killing him, if I can avoid it. Nay, my behavior must absolutely be what would be called cowardice, perhaps, by Mr. X and W, though it would be thought the truest bravery, not only by the greatest philosophers and legislators, but by the best generals of the world; I must run away from such an assailant, and avoid him if I have room, rather than stand my ground and defend myself; but if I have no room to escape, or if I run and am pursued to the wall or into a corner, where I cannot elude his fury, and have no other way to preserve my own life from his violence, but by taking his there, I have an indisputable right to do it, and should be justified in wading through the blood of a whole army, if I had power to shed it and had no other way to make my escape.”(15)
Like the similar examples selectively quoted by Barton in his early legal commentaries chapter, Adams was merely saying what constituted justifiable homicide, and said nothing about the completely separate issue of an individual’s right to be carrying whatever weapon might happen to be used these cases.
Not surprisingly, most of the founders’ quotes used by Barton, when put back in context, clearly had to do with the militia.
Barton quotes George Washington as saying:
“A free people ought … to be armed.”
Here’s the full sentence, from Washington’s first Annual Message to Congress (what the State of the Union Address used to be called) in 1790, with the parts omitted by Barton in bold:
“A free people ought not only to be armed, but disciplined; to which end, a uniform and well digested plan is requisite: and their safety and interest require that they should promote such manufactories as tend to render them independent on others for essential, particularly for military supplies.”(16)
He quotes Patrick Henry as saying:
“The great object is that every man be armed…. Every one who is able may have a gun. But have we not learned by experience that, necessary as it is to have arms, . . . it is still far from being the case?”
Here’s a longer, unedited, excerpt from Patrick Henry said in the Virginia ratifying convention, again with the parts omitted by Barton in bold, and also changing what Barton turned into a question to imply that Henry was saying that the people were already commonly armed back into a statement saying that they weren’t:
“May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is that every man be armed. But can the people afford to pay for double sets of arms, &c.? Every one who is able may have a gun. But have we not learned by experience that, necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case.”(17)
This Patrick Henry quote, like many others from the state ratifying convention debates on the Constitution, was about the issue of who would actually be responsible for paying to arm and train the state militias – the federal government or the state governments — since the Constitution gave Congress the power of “arming, organizing, and disciplining the militia.” What Henry and others wanted was to ensure that if the federal government ever neglected to arm the militia, that the states would have the right to do it themselves. So, obviously, by “every man,” Henry meant every man who needed to be supplied with arms to serve in the militia, and was not saying anything about individual rights.
Barton also quotes what George Mason, who was talking about exactly the same thing that Patrick Henry was talking about, said in the Virginia ratifying convention:
“Forty years ago, when the resolution of enslaving America was formed in Great-Britain, the British parliament was advised … to disarm the people. That it was the best and most effectual way to enslave them. But that they should not do it openly; but to weaken them and let them sink gradually.”
The unedited version of what Mason said:
“An instance within the memory of some of this house will show us how our militia may be destroyed. Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them. But that they should not do it openly; but to weaken them and let them sink gradually, by totally disusing and neglecting the militia.”(18)
Barton also plucks and edits this quote from George Mason from the same speech at the Virginia ratifying convention:
“I consider and fear the natural propensity of rulers to oppress the people. I wish only to prevent them from doing evil…. Divine providence has given to every individual the means of self-defense.”
Here, Mason wasn’t even talking about the people being disarmed. He was talking about the possibility that the federal government, in order to introduce a standing army, might someday destroy the militia in a completely different way — not by disarming the people, but by abusing its power to discipline the militia to a point that would make the people not want to serve in it.
Here’s what Mason said, put back in context, again with the parts omitted by Barton in bold:
“If at any time our rulers should have unjust and iniquitous designs against our liberties, and should wish to establish a standing army, the first attempt would be to render the service and use of militia odious to the people themselves; subjecting them to unnecessary severity of discipline in time of peace, confining them under martial law, and disgusting them so much, as to make them cry out, give us a standing army! I would wish to have some check to exclude this danger; as, that the militia should never be subject to martial law, but in time of war. I consider and fear the natural propensity of rulers to oppress the people. I wish only to prevent them from doing evil. By these amendments, I would give necessary powers, but no unnecessary power. If the clause stands as it is now, it will take from the state legislatures what divine providence has given to every individual — the means of self-defense. Unless moderated, in some degree, it will ruin us, and introduce a standing army.”(19)
Barton uses a bunch of other similar quotes about the issue of a standing army vs. the militia and federal authority vs. state authority to arm the state militias, similarly edited to make these quotes appear top be about individual rights rather than the militia. It would be redundant to list all of these quotes here, so let’s move on to some of Barton’s other butchered quotes that, while still related to the militia in some way, brought up other issues.
Barton quotes Richard Henry Lee as saying:
“[T]o preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.”
This is another quote that, when put back in context, completely debunks one of Barton’s biggest claims — that everyone back in the founding era had guns and knew how to use them — a claim that Barton relies on for his crazy statements like his recent one about there being no gun accidents in the founding era.
What the “Federal Farmer” (an anti-federalist thought by some historians to have been Richard Henry Lee and by others to have been someone else) was saying was that many citizens, if not required to be armed and trained for militia service, would “generally be without arms, without knowing the use of them.”
Here’s the quote, from one of the Federal Farmer’s letters, from which Barton selectively quotes only part of the last sentence:
“But, say gentlemen, the general militia are for the most part employed at home in their private concerns, cannot well be called out, or be depended upon; that we must have a select militia; that is, as I understand it, particular corps or bodies of young men, and of men who have but little to do at home, particularly armed and disciplined in some measure, at the public expence, and always ready to take the field. These corps, not much unlike regular troops, will ever produce an inattention to the general militia; and the consequence has ever been, and always must be, that the substantial men, having families and property, will generally be without arms, without knowing the use of them, and defenceless; whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them …”(20)
To show how completely irrelevant some of the quotes that Barton plucks from their context actually are, here’s what he quotes from John Jay:
“[M]ankind must be prepared and fitted for the reception, enjoyment, and preservation of universal permanent peace before they will be blessed with it. Are they as yet fitted for it? Certainly not. Even if it was practicable, would it be wise to disarm the good before ‘the wicked cease from troubling?’”
This one not only has nothing to do with Americans having guns — it doesn’t even have anything to do with America. It’s from a letter John Jay wrote to a friend “on the question, Whether war of every description is forbidden by the gospel?” Jay concluded his lengthy letter, which was apparently prompted by a pamphlet that his friend sent him on the subject, by saying:
“But, whatever may be the time, or the means adopted by Providence for the abolition of war, I think we may, without presumption, conclude, that mankind must be prepared and fitted for the reception, enjoyment, and preservation of universal permanent peace, before they will be blessed with it. Are they as yet fitted for it? Certainly not. Even if it was practicable, would it be wise to disarm the good before ‘the wicked cease from troubling?’ By what other means than arms and military force, can unoffending rulers and nations protect their rights against unprovoked aggressions from within and from without? Are there any other means to which they could recur, and on the efficacy of which they could rely? To this question I have not as yet heard, nor seen, a direct and precise answer.”(21)
III. Early Legislative Acts
Barton begins this chapter:
“The views held by early Americans on the Second Amendment right ‘to keep and bear arms’ were a reflection of the views previously established by experience and decades of tradition and finally incorporated by law into their own States. Those early laws provide the third source which affirms that the right ‘to keep and bear arms’ pertains to every individual citizen.”
He then proceeds to use as examples the earliest laws of Virginia and the other colonies from the 1600s:
“Consider, for example, a 1623 Virginia law that prevented a citizen from traveling unless he was ‘well armed.’” And in 1631, Virginia required:
“‘That men go not to work … without their arms. All men that are fitting to bear arms shall bring their pieces to the church, [and] upon pain of every offense … pay 2 lb of tobacco.’
“In 1658, Virginia required every householder to have a functioning firearm within his house; and in 1673, the law provided that a citizen who claimed that he was too poor to purchase a firearm would have one purchased for him by the government, which would then require him to pay a reasonable price when able to do so. And a 1676 law declared that ‘Liberty is granted to all persons to carry their arms wheresoever they go.’”
Not only were all of these early colonial Virginia laws clearly referring to the citizens as being part of a militia, the 1676 law that Barton claims granted the right “to all persons to carry their arms wheresoever they go” was actually a law restricting this right.
So, let’s look at what these early Virginia laws really said, in their historical context and without Barton’s editing.
The 1623 law was passed because of an Indian massacre in 1622 in which three hundred and forty-seven English settlers in the Virginia colony were killed by the Powhatan Indians. As part of what was a series of coordinated attacks on the same day, the Indians also set fire to a number of plantations, wiping out much of the crops and livestock that the colonists were depending on to survive the next winter.
In response to the 1622 massacre, the Assembly enacted laws to protect the colonists and their crops against Indian attacks. These laws included requiring all planters to be armed while working in their fields, with a sentinel guarding their weapons as they worked, and that a guard be kept on their fields at night. And, because every able-bodied man was considered essential to the protection of their plantation (a plantation at the time meant an entire settlement, not an individual’s farm), the colonists were required by law to protect themselves by traveling only with an armed party, and never to have too many men absent from any plantation at the same time.
Here’s the full text of the 1623 Virginia laws that Barton claims are historical evidence “that the right ‘to keep and bear arms’ pertains to every individual citizen”:
“23. That every dwelling house shall be pallizaded for defence against the Indians.
“24. That no man go or send abroad without a sufficient partie will armed.
“25. That men go not to worke in the ground without their arms (and a centinell upon them.)
“26. That the inhabitants go not aboard ships or upon any other occasions in such numbers, as thereby to weaken and endanger the plantations.
“27. That the commander of every plantation take care that there be sufficient of powder and amunition within the plantation under his command and their pieces fixt and their arms compleate.
“28. That there be dew watch kept by night.
“29. That no commander of any plantation do either himselfe or suffer others to spend powder unneccessarily in drinking or entertainments, &c.”(22)
These 1623 laws didn’t grant any “right” to the citizens. In fact, they actually restricted the colonists’ rights by mandating what they were required to do for the protection of their community, and even restricting their right to travel freely. If you were told today that you were required by law to have a gun with you every time you got in your car, would you consider this a right?
The laws of 1631 kept the laws of 1623 in force, and added this section requiring that all men fitting to bear arms bring their guns to church:
“ALL men that are fittinge to beare armes, shall bringe their peices to the church uppon payne of every effence, yf the mayster allow not thereof to pay 2 lb. of tobacco, to be disposed by the church-wardens, who shall levy it by distress, and the servants to be punished.”(23)
So, why were Virginia’s colonists required by law to bring their guns to church? Is this evidence that “the right ‘to keep and bear arms’ pertains to every individual citizen,” as Barton claims it to be? Well, no. They were required to bring their guns to church because they were required to participate in target practice on Sundays. What Virginia had by 1631 was a pretty “well-regulated militia.” Once again, this wasn’t a right; it was a requirement.
Like the 1623 and 1631 laws, the 1658 and 1673 laws of Virginia cited by Barton were also to ensure that the militia was properly armed, and had nothing to do with individual rights. But it’s the 1676 law that I want to get to here, because this is the one that shows just how incredibly far Barton will go with his misquoting to make something say the exact opposite of what it really said.
Look again at what Barton says about this 1676 law:
“And a 1676 law declared that ‘Liberty is granted to all persons to carry their arms wheresoever they go.’”
Now read the entire law that Barton plucks that quote from:
“And whereas by a branch of an act of assembly made in march last, liberty is granted to all persons to carry their armes wheresoever they goe, which liberty hath beene found to be very prejudiciall to the peace and wellfaire of this colony. Bee it therefore further enacted by this present grand assembly, and the authority thereof, and it is hereby enacted, 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 five or upwards, they be held deemed and adjudged as riotous and mutinous, and that they be proceeded against and punished accordingly.”(24)
As you can see, this 1676 law, passed in response to Bacon’s Rebellion, severely restricted the right of “all persons to carry their armes wheresoever they goe” by prohibiting any group of more than four armed men from assembling together for any reason other than being called to arms by the government. Barton, however, so grossly misquotes this law that he actually turns the restricting of the right for “all persons to carry their arms wheresoever they go” into the granting of this right.
Barton then gives a few examples of laws from other colonies from the 1600s, which are not necessary to go into here because they were basically the same, and passed for the similar reasons, as the ones in Virginia.
Next, he jumps to a 1770 Georgia law that required the bringing of guns to church. But, like the earlier Virginia law, this Georgia law had a militia-related purpose. Every man who was required to serve in the militia had to bring their guns and a certain amount of ammunition to church to prove that they had the weapons and ammunition required by law for service in the militia. The church wardens or other officials were to verify, by inspecting the men on Easter, Christmas, and twelve other times throughout the year, that every man required to serve in the militia had the required weapons and ammunition in their possession.(25)
So, Barton has thus far not provided a single example of an individual’s “right” to bear arms, but rather has provided a bunch of examples of individuals being required by law to serve in the militia. Apparently, he doesn’t get the difference between a right to bear arms and a mandate to bear arms.
Barton next spends several pages on a straw man, proving through quotes from various founders that the word “militia” meant all men capable of bearing arms — a definition that nobody is disputing. He does take care, however, to avoid any mention of the militia being “well-regulated.” For example, he quotes Richard Henry Lee as saying:
“[T]he militia shall always … include, according to the past and general usage of the States, all men capable of bearing arms.” (emphasis Barton’s)
What did Barton omit and replace with his ellipsis? The words bolded below:
“… the militia shall always be kept well organized, armed, and disciplined, and include, according to the past and general usage of the states, all men capable of bearing arms.”(26)
What Barton is quoting here is actually just another snippet from the same paragraph of the same “Federal Farmer” letter that he used for his out-of-context Richard Henry Lee quote in his “Views of the Founding Fathers” chapter.
Barton then moves on to the Militia Act of 1792, writing:
“It was not surprising, therefore, that when the United States Congress passed the first federal law on this subject (the Militia Act of 1792), it defined ‘militia of the United States’ not as the Continental Army or any other organized military body but rather as including almost every adult male in the United States. Under that act, each adult was required — by law — to possess a firearm and a minimum supply of ammunition and military equipment, and this law continued in force into the twentieth century.”
There were two militia acts passed in 1792, the first “providing for the authority of the President to call out the Militia,” and the second “to provide for the National Defence, by establishing an Uniform Militia throughout the United States.” The second of these two acts required “every free able-bodied white male” between the ages of eighteen and forty-five to be enrolled in the militia of their state and to purchase the guns and other items required by the act. Barton is right — it’s not surprising that these acts were passed. The Constitution had given Congress the power to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions,” so Congress needed to pass laws “providing for” this. What is surprising, however, is that Barton, a very vocal opponent of Obamacare, doesn’t see the incredible irony of pointing out a 1792 federal law containing an “individual mandate” that required the citizens of the states to buy something whether they wanted to or not.
Barton continues by saying that the state constitutions also contained provisions similar to the federal government’s requirement to serve in the militia, writing:
“Significantly, numerous State constitutions adopted subsequent to the Second Amendment and the Militia Act of 1792 contain similar declarations.”
Actually, there’s nothing “significant” about this, or anything else in this chapter of Barton’s book for that matter, so let’s move on to his quotes from the state constitutions.
IV. State Constitutions
Barton begins this chapter by saying:
“Because the Second Amendment was primarily a reflection of the belief present in the individual Sates, the State constitutions are the fourth source that affirm that ‘the right to keep and bear arms’ was universally understood to be an individual right. In fact, State constitutions adopted even a century-and-a-half after the Second Amendment still continued to reflect the original understanding.”
What Barton does to support this statement is to edit or misrepresent the language of quite a few of the state constitutions he cites in order to do two things: 1) to hide that many of the state constitutions said nothing in their “bearing arms” provisions that could be construed to mean this as an individual right, and 2) to hide that many of the state constitutions either explicitly said that the legislature did have the power to pass laws regulating this right, or restricted it in some way right in their constitutions.
As anyone familiar with state constitutions knows, states often copied the language from the existing constitutions of other states when writing their own constitutions, leading to identical or very similarly worded provisions in multiple state constitutions. This led a good number of states to adopt the following, or something very similar, as their “bearing arms” provision:
“Every citizen has a right to bear arms in defense of himself and the state.”
For the states that used this exact wording or something like it, Barton doesn’t have to lie, since the real wording does include the word “himself,” or “themselves,” making it refer to individuals as well as the militia, and places no restrictions on this right.
Of course, Barton also lists the six states that didn’t say this was an individual right, but worded it like the Massachusetts constitution of 1780, which said: “The people have a right to keep and to bear arms for the common defence.” Barton just hides that these state constitutions referred only to the “common defense” of the state, and cannot be interpreted to mean an individual right.
But even in states where the wording of the state constitution was interpreted to mean that an individual had a constitutional right to carry weapons, the courts usually did not take this to mean that the legislature couldn’t pass laws regulating this right for the sake of public safety.
One states that used the “Every citizen has a right to bear arms in defense of himself and the state” language was Alabama, whose first constitution was adopted in 1819. But here’s how Henry W. Collier, the Chief Justice of the Supreme Court of Alabama from 1837 to 1849, interpreted this provision in 1840 when someone tried to claim that an Alabama law prohibiting the carrying of concealed weapons was unconstitutional under the state’s constitution:
“The constitution in declaring that, ‘Every citizen has the right to bear arms in defence of himself and the State,’ has neither expressly nor by implication, denied to the Legislature, the right to enact laws in regard to the manner in which arms shall be borne. The right guarantied to the citizen, is not to bear arms upon all occasions and in all places, but merely ‘in defence of himself and the State.’ The terms in which this provision is phrased seems to us, necessarily to leave with the Legislature the authority to adopt such regulations of police, as may be dictated by the safety of the people and the advancement of public morals. The statute of 1 Wm. and M. while it declares the right of the subject, it refers to Parliament to determine what arms shall be borne and how; while our constitution being silent as to the action of the Legislature, does not divest it of a power over the subject, which pertained to it independent of an express grant. …
“… A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholely useless for the purpose of defence, would be clearly unconstitutional. But a law which is intended merely to promote personal security, and to put down lawless aggression and violence, and to that end inhibits the wearing of certain weapons, in such a manner as is calculated to exert an unhappy influence upon the moral feelings of the wearer, by making him less regardful of the personal security of others, does not come in collision with the constitution.”(27)
Barton also deceptively lists all of the following state constitutions in his book, using various tricks to hide that these state constitutions all regulated, or gave the legislature the power to regulate, the right to bear arms:
Kentucky 1850: “That the rights of the citizens to bear arms in defense of themselves and the State shall not be questioned; but the General Assembly may pass laws to prevent persons from carrying concealed arms.”
Missouri 1875: “The right of every citizen to keep and bear arms in defense of his home, person or property, or in aid of the civil power when thereto legally summoned, shall not be called in question; but nothing herein contained is intended to justify the practice of wearing concealed weapons.”
Colorado 1876: That the right of no person to keep and bear arms in defense of his home, person, and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.
Georgia 1877: “The right of the people to keep and bear arms, shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.”
Florida 1885: “The right of the people to bear arms in defense of themselves and the lawful authority of the State, shall not be infringed, but the Legislature may prescribe the manner in which they may be borne.”
Idaho 1889: “The people have the right to bear arms for their security and defense; but the legislature shall regulate the exercise of this right by law.”
Montana 1889: “The right of every citizen to keep and bear arms in defense of his home, person or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons.”
Washington 1889: “The right of the individual citizen to bear arms in defense of himself or the state shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.”
Mississippi 1890: “The right of every citizen to keep and bear arms in defense of his home, person or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons.”
Utah 1895: “The people have the right to bear arms for their security and defense, but the legislature may regulate the exercise of this right by law.”
One state constitution noticeably absent in Barton’s book is the constitution of his own state of Texas from the same time period as the others he cites. Why would he leave this one out? Well, because this is what the Texas constitution of 1869 said:
“Every person shall have the right to keep and bear arms, in the lawful defence of himself or the State, under such regulations as the Legislature may prescribe.”
And prescribe laws the Texas legislature did. In 1871, two years after adopting its 1869 constitution, Texas passed “An Act to regulate the keeping and bearing of deadly weapons.” This act prohibited:
“… any person carrying on or about his person, saddle, or in his saddle bags any pistol, dirk, dagger, slung-shot, sword-cane, spear, brass-knuckles, bowie-knife, or any other kind of knife manufactured or sold for the purposes of offense or defense, unless he has reasonable grounds for fearing an unlawful attack on his person, and that such ground of attack shall be immediate and pressing; or unless having or carrying the same on or about his person for the lawful defense of the State, as a militiaman in actual service, or as a peace officer or policeman.”(28)
It also made it illegal in Texas to be armed in churches, schools, and pretty much anywhere else where people would be gathered:
“If any person shall go into any church or religious assembly, any school room, or other place where persons are assembled for amusement or for educational or scientific purposes, or into any circus, show, or public exhibition of any kind, or into a ball room, social party, or social gathering, or to any election precinct on the day or days of any election, where any portion of the people of this State are collected to vote at any election, or to any other place where people may be assembled to muster, or to perform any other public duty, (except s may be required or permitted by law,) or to any other public assembly, and shall carry about his person a pistol or other firearm, dirk, dagger, slung-shot, sword-cane, spear, brass-knuckles, bowie-knife, or any other kind of knife manufactured or sold for the purposes of offense or defense, unless an officer of the peace, he shall be guilty of a misdemeanor, and, on conviction thereof, shall, for the first offense, be punished by fine not less than fifty, nor more than five hundred dollars, and shall forfeit to the county the weapon or weapons so found on his person; and for every subsequent offense may, in addition to such fine and forfeiture, be imprisoned in the county jail for a term not more than ninety days.”(29)
Yes, David Barton, who, as I said at the beginning of this very long post, thinks that not only teachers — but students — should be armed in schools, and claims that this was what made schools safe in the 1800s, is from a state whose early laws made it illegal to bring any weapon into a school.
1. James A.H. Murray, ed., A New English Dictionary on Historical Principles: Founded Mainly on the Materials Collected by the Philological Society, vol. 1, (Oxford: Clarendon Press, 1888), 449.
2. West H. Humphreys, Reports of Cases Argued and Determined in the Supreme Court of Tennessee, vol. 2, (St. Louis: G.I. Jones and Company, 1878), 125.
3. Sir William Blackstone, Commentaries on the laws of England, vol. 1, (Oxford: Clarendon Press, 1775), 143-144.
4. Ibid., 144.
5. 1 W. & M. st. 2. c. 2. was the English Bill of Rights, passed into law in 1689 as “An Act for Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown.”
6. Bird Wilson, ed., The Works of the Honourable James Wilson, L.L.D., Late One of the Associate Justices of the Supreme Court of the United States, and Professor of Law in the College of Philadelphia, vol. 3, (Philadelphia: Bronson and Chauncey, 1804), 83-85.
7. Sir Edward Coke, The Third Part of the Institutes of the Laws of England, (London: E. and R. Brooke, 1797), 161.
9. Sir Matthew Hale, The History of the Pleas of the Crown, vol. 1, (London: Printed by E. Rider, Little-Britain, for T. Payne, et. al., 1800), 547.
11. William Rawle, A View of the Constitution of the United States of America, (Philadelphia: P.H. Nicklin, 1829), 125-126.
12. Ibid., 126.
13. George Washington to George Mason, April 5, 1969. John C. Fitzpatrick, ed., The Writings of George Washington from the Original Manuscript Sources, vol. 2, (Washington, DC: U.S. Government Printing Office, 1931), 501.
14. Charles Francis Adams, ed., The Works of John Adams, Second President of the United States, vol. 3, (Boston: Charles C. Little and James Brown, 1851), 438.
15. Ibid., 439.
16. Journal of the House of Representatives of the United States, vol. 1, (Washington: Gales & Seaton, 1826), 135.
17. Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution, vol. 3, (Philadelphia: J.B. Lippincott & Co., 1866), 386.
18. Ibid., 380.
19. Ibid., 381.
20. Herbert J. Storing, ed., The Complete Anti-Federalist, vol. 1, (Chicago: University of Chicago Press, 2007), 342.
21. John Jay to John Murray, April 15, 1818. William Jay, The Life of John Jay: With Selections from his Correspondence and Miscellaneous Papers, vol. 2, (New York: J. & J. Harper, 1833), 397.
22. William Waller Hening, ed., The Statutes at Large: Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, vol. 1, (Richmond, VA: Samuel Pleasants, 1809), 127.
23. Ibid., 174.
24. William Waller Hening, ed., The Statutes at Large: Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, vol. 2, (New York: R. & W. & G. Bartow, 1823), 386.
25. Robert & George Watkins, A Digest of the Laws of the State of Georgia: from its First Establishment as a British Province Down to the Year 1798, Inclusive, and the Principal Acts of 1799, (Philadelphia: R. Aitken, 1800), 157.
26. Herbert J. Storing, ed., The Complete Anti-Federalist, vol. 1, (Chicago: University of Chicago Press, 2007), 341.
27. Report of Cases at Law and in Equity, Argued and Determined in the Supreme Court of Alabama, During 1840, vol. 1, (Tuscaloosa, AL: Hale and Phelan, 1841), 616-617.
28. H.P.N. Gammel, ed., The Laws of Texas, 1822-1897, vol. 6, (Austin, TX: The Gammel Book Company, 1898), 927.
29. Ibid., 927-928.