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Mandatory Gun Ownership, the Militia Census of 1806, and Background Assumptions concerning the Early American Right to Arms: A Cautious Response to Robert Churchill

Published online by Cambridge University Press:  18 August 2010

William G. Merkel
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Extract

In “Gun Ownership in Early America,” published in the William and Mary Quarterly in 2003, Robert Churchill drew on probate inventories and militia records to make the case that arms ownership was pervasive in late colonial, revolutionary, and early national America. Churchill concluded with the observation that “[i]t is time to ponder what these guns meant to their owners and how that meaning changed over time.” In his substantial contribution to this volume of Law and History Review, Churchill takes up that challenge himself and advances the claim that widespread arms ownership engendered a sense of possessory entitlement, and that this notion of right informed constitutional sensibilities respecting guns and the Second Amendment. He acknowledges that a civic republican understanding focused on the militia was central to the framers' conception of the right to arms, but urges that another stream of discourse—individualistic, personal, and divorced from militia linked obligations—was present from the beginning. By the early nineteenth century, Churchill argues, this purely private view of the right to arms had become ascendant.

Type
Forum: Comment
Information
Law and History Review , Volume 25 , Issue 1 , Spring 2007 , pp. 187 - 196
Copyright
Copyright © the Board of Trustees of the University of Illinois 2007

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References

1. Churchill, Robert H., “Gun Ownership in Early America: A Survey of Manuscript Militia Returns,” The William and Mary Quarterly, 3d ser., 60 (2003): 615.CrossRefGoogle Scholar

2. Ibid., 642.

3. Churchill, Robert H., “Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment,” Law and History Review 25 (2007): 139–75.CrossRefGoogle Scholar

4. American State Papers, 5, Military Affairs, 1:198–99. For information on Varnum, see the entry in American National Biography 22:278–79 by Edward W. Hanson of the Massachusetts Historical Society.

5. American State Papers, 5, Military Affairs, 1:199.

6. Ibid., 199.

7. Ibid., 198–99.

8. These are my rough calculations; I have left out sergeant majors and quartermaster sergeants because of their insignificant numbers and my uncertainty as to whether they were expected to muster with long guns. I have also omitted the reports for the District of Columbia, Mississippi Territory, and Indiana Territory, whose militia were few in number. The Orleans and Louisiana territories did not report. For the raw numbers see American State Papers, 5, Military Affairs, 1:202–3. For Churchill's important reservations about reading too much into these numbers see Churchill, “Gun Ownership in Early America.” Churchill makes the case that the census should not be taken at face value; instead, he maintains, it is important to look at the documents generated at the brigade level on which the census was based. By failing to do so, Churchill cautions that historians will be mislead because the census undercounts by measuring guns brought to muster, not guns held at home. But if this were a serious problem, one would expect Major General Varnum, with thirty years militia experience, to have been aware of it. He reported “upwards of 250,000 firearms and rifles in the hands of the militia”; the census lists by my count some 204,200 muskets and 52,900 rifles, suggesting strongly that it provided the basis of Varnum's figures. If Varnum knew of systemic undercounting, he failed to tell Congress, and mislead his colleagues in the process. See American State Papers, 5, Military Affairs, 1:199.

9. See Merkel, William G., “To See Oneself as a Target of a Justified Revolution: Thomas Jefferson and Gabriel's Rebellion,” American Nineteenth Century History 4.1 (2003): 1–31.CrossRefGoogle Scholar

10. See Isaac, Rhys, The Transformation of Virginia: Community, Religion, and Authority, 1740–1790 (Chapel Hill: University of North Carolina Press, 1982).Google Scholar

11. Taylor, Alan, American Colonies (New York: Viking, 2001), 420–43.Google Scholar

12. See detailed discussion in Schwoerer, Lois G., “To Hold and Bear Arms: The English Perspective,” Chicago-Kent Law Review 76 (2000): 27Google Scholar, and in Uviller, H. Richard and Merkel, William G., The Militia and the Right to Arms, Or How the Second Amendment Fell Silent (Durham: North Carolina Press, 2002), 47–56Google Scholar.

13. See, e.g., McDonnell, Michael A., “The Politics of Mobilization in Revolutionary Virginia: Military Culture and Political and Social Relations, 1774–1783” (Oxford University D.Phil. thesis, 1995).Google Scholar

14. Cornell, Saul, “Early American Gun Regulation and the Second Amendment: A Closer Look at the Evidence,” Law and History Review 25 (2007): 197–204.CrossRefGoogle Scholar