[Ed: Republished by permission of the author, from Bearing Arms 12/30/2020.]
What did the Founding Fathers think about our right to keep and bear arms? According to historian Saul Cornell, founders like George Washington, Thomas Jefferson, John Adams, and James Madison would be far more likely to side with Everytown for Gun Safety than the National Rifle Association if they were alive today, because in Cornell’s view, the early republic was chock full of restrictions on gun owners.
In a new piece at The Conversation, Cornell lays out five types of gun laws that he says the Founders wholeheartedly embraces, starting with gun registration laws.
Today American gun rights advocates typically oppose any form of registration – even though such schemes are common in every other industrial democracy – and typically argue that registration violates the Second Amendment. This claim is also hard to square with the history of the nation’s founding. All of the colonies – apart from Quaker-dominated Pennsylvania, the one colony in which religious pacifists blocked the creation of a militia – enrolled local citizens, white men between the ages of 16-60 in state-regulated militias. The colonies and then the newly independent states kept track of these privately owned weapons required for militia service. Men could be fined if they reported to a muster without a well-maintained weapon in working condition.
What Cornell is describing isn’t a registration of privately owned firearms, and he provides no evidence whatsoever that the various colonies actually kept track of the rifles and muskets owned by militia members. Cornell is correct when he says that those mustering for militia service could face fines if their firearm wasn’t well maintained, but that has nothing to do with any sort of registration or list of guns in the hands of private citizens.
Next, Cornell claims that the Founders loved the idea of restricting the right to carry. For this argument, Cornell reaches way back to English common law and claims that there was no “general right of armed travel” at the time of the adoption of the Second Amendment. Were there any actual bans on traveling while armed? Cornell doesn’t cite any specific examples, though he is correct when he points out that by the mid-1800s many states had either banned or limited the practice of carrying concealed. What he doesn’t point out is that by attempting the manner of carrying arms, those same lawmakers were tacitly acknowledging a more general right to carry.
The Fordham University historian also argues that the Founders would also have been opposed to “stand your ground” laws, even though the Castle Doctrine had been a part of common law for centuries by that point.
The use of deadly force was justified only in the home, where retreat was not required under the so-called castle doctrine, or the idea that “a man’s home is his castle.” The emergence of a more aggressive view of the right of self-defense in public, standing your ground, emerged slowly in the decades after the Civil War.
I’m honestly not sure where Cornell gets the idea that deadly force was only justifiable in the home. I can think of one very famous case from the 1770s where that wasn’t the case. Most of the British soldiers who opened fire on a crowd of angry Bostonians who were throwing chunks of ice and razor-sharp oyster shells at them on March 5th, 1770 were ultimately found not guilty of murder because a jury found that they were acting in self-defense (two others were convicted of manslaughter).
Cornell goes on to claim that the Founders were on board with storage laws, based solely off of a 1786 ordinance in Boston that required guns had to be kept unloaded. His last assertion is that “the notion that the Second Amendment was understood to protect a right to take up arms against the government is absurd. Indeed, the Constitution itself defines such an act as treason.”
To wage an offensive war against the United States is indeed treason, as defined by Article III of the Constitution. To take up arms in defense of a tyrannical federal government, on the other hand, was most certainly acknowledged as a right of the people by the Founding Fathers. Here’s James Madison writing in Federalist 46.
Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.
Saul Cornell has likely forgotten more history than I’ll ever know, but he’s off-base in asserting that the Founding Fathers embraced the idea of restricting the right to keep and bear arms. There’s simply no evidence to support the idea that the laws pushed by gun control activists today, like bans on commonly-owned firearms or magazines; gun licensing; gun rationing; or bans on carrying firearms would have found favor with the Founders or the early Americans who argued against ratifying the Constitution until a Bill of Rights was included and the pre-existing right of the people to keep and bear arms was protected.
— Cam Edwards has covered the 2nd Amendment for more than 15 years as a broadcast and online journalist, as well as the co-author of Heavy Lifting: Grow Up, Get a Job, Start a Family, and Other Manly Advice with Jim Geraghty. He lives outside of Farmville, Virginia with his family.