Five types of gun laws the Founding Fathers loved

Yahoo News

The Second Amendment is one of the most frequently cited provisions in the American Constitution, but also one of the most poorly understood.

The 27 words that constitute the Second Amendment seem to baffle modern Americans on both the left and right.

Ironically, those on both ends of our contemporary political spectrum cast the Second Amendment as a barrier to robust gun regulation. Gun rights supporters – mostly, but not exclusively, on the right – seem to believe that the Second Amendment prohibits many forms of gun regulation. On the left, frustration with the lack of progress on modern gun control leads to periodic calls for the amendment’s repeal.

Both of these beliefs ignore an irrefutable historical truth. The framers and adopters of the Second Amendment were generally ardent supporters of the idea of well-regulated liberty. Without strong governments and effective laws, they believed, liberty inevitably degenerated into licentiousness and eventually anarchy. Diligent students of history, particularly Roman history, the Federalists who wrote the Constitution realized that tyranny more often resulted from anarchy, not strong government.

I have been researching and writing about the history of gun regulation and the Second Amendment for the past two decades. When I began this research, most people assumed that regulation was a relatively recent phenomenon, something associated with the rise of big government in the modern era. Actually, while the founding generation certainly esteemed the idea of an armed population, they were also ardent supporters of gun regulations.

Consider these five categories of gun laws that the Founders endorsed.

#1: Registration

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.

#2: Public carry

The modern gun rights movement has aggressively pursued the goal of expanding the right to carry firearms in public.

The American colonies inherited a variety of restrictions that evolved under English Common Law. In 18th-century England, armed travel was limited to a few well-defined occasions such as assisting justices of the peace and constables. Members of the upper classes also had a limited exception to travel with arms. Concealable weapons such as handguns were subject to even more stringent restrictions. The city of London banned public carry of these weapons entirely.

The American Revolution did not sweep away English common law. In fact, most colonies adopted common law as it had been interpreted in the colonies prior to independence, including the ban on traveling armed in populated areas. Thus, there was no general right of armed travel when the Second Amendment was adopted, and certainly no right to travel with concealed weapons. Such a right first emerged in the United States in the slave South decades after the Second Amendment was adopted. The market revolution of the early 19th century made cheap and reliable hand guns readily available. Southern murder rates soared as a result.

In other parts of the nation, the traditional English restrictions on traveling armed persisted with one important change. American law recognized an exception to this prohibition for individuals who had a good cause to fear an imminent threat. Nonetheless, by the end of the century, prohibiting public carry was the legal norm, not the exception.

#3: Stand-your-ground laws

Under traditional English common law, one had a duty to retreat, not stand your ground. Deadly force was justified only if no other alternative was possible. One had to retreat, until retreat was no longer possible, before killing an aggressor.

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.

#4: Safe storage laws

Although some gun rights advocates attempt to demonize government power, it is important to recognize that one of the most important rights citizens enjoy is the freedom to elect representatives who can enact laws to promote health and public safety. This is the foundation for the idea of ordered liberty. The regulation of gun powder and firearms arises from an exercise of this basic liberty.

In 1786, Boston acted on this legal principle, prohibiting the storage of a loaded firearm in any domestic dwelling in the city. Guns had to be kept unloaded, a practice that made sense since the black powder used in firearms in this period was corrosive. Loaded guns also posed a particular hazard in cases of fire because they might discharge and injure innocent bystanders and those fighting fires.

#5: Loyalty oaths

One of the most common claims one hears in the modern Second Amendment debate is the assertion that the Founders included this provision in the Constitution to make possible a right of revolution. But this claim, too, rests on a serious misunderstanding of the role the right to bear arms played in American constitutional theory.

In fact, the Founders engaged in large-scale disarmament of the civilian population during the American Revolution. The right to bear arms was conditional on swearing a loyalty oath to the government. Individuals who refused to swear such an oath were disarmed.

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.

Gun regulation and gun ownership have always existed side by side in American history. The Second Amendment poses no obstacle to enacting sensible gun laws. The failure to do so is not the Constitution’s fault; it is ours.

This article is republished from The Conversation, a nonprofit news site dedicated to sharing ideas from academic experts.

7 thoughts on “Five types of gun laws the Founding Fathers loved

  1. Happy fkn new year…!

    I could give a rats ass…. about other human beings claims of authority.

    Take any regulation, registration or other controlling mechanism over our arms and shove it.

    How am I obligated to live under or follow what another person or persons version of freedom is for me?

    So long as I do not harm or injure another person, persons property or use fraud in any agreements or contracts, then there can be No retribution against me, and certainly not outside of the bill of rights and it’s due process contained within; exercised via our people’s court jurisdictions.

    This article is an attempt to dissuade a liberty minded person into thinking that well yeah, maybe some fictitious construct managed by other people can somehow have an authority to make demands upon another or a body of others.

    It is what the uprising was really about.

    We will create our own New history without other mthrfkrs Having a say or interaction with or against us outside of the true law.!!!

    DTTNWO and this article… The Gun “IS” the thing they fear, in the hands of a free, liberty thinker.

    Come And take them..!

    1. You said it, Norm. What a crock of… Yahoo can stuff it up its corporate can. And this:

      “The American Revolution did not sweep away English common law. In fact, most colonies adopted common law as it had been interpreted in the colonies prior to independence…”

      BS. So untrue. The English Common Law left the power with the government; the people of the newly formed America fought for the power of the individual and rejected the English version of common law.

      The article ends with: “This article is republished from The Conversation, a nonprofit news site dedicated to sharing ideas from academic experts.”

      They meant “academic” AS*HOLES, didn’t they?

      Beware the “experts.” They are the soldiers of the enemy.

      Dictionary: expert, noun – a person who has a comprehensive and authoritative knowledge of or skill in a particular area. There’s that word you warned against Norm, “authoritative.” It’s the word to watch, in all its false assignments.


  2. 27 words but they are never used in this article.

    Because some people (well regulated militias and free states) are more equal, I’ll (the people)use what ever means including firearms I want to maintain my equalness. And the government has no authority to infringe.

  3. Okay, to start off, the very moment the English Charter was surrendered at Yorktown, all English law ceased to exist in this country as the ENGLISH royal jurisdiction for the law had been removed.
    Again you mention English common law in 1786. Well, you communist piece of garbage, they may have written it down on a piece of paper, but there was no jurisdictional authority for it as the Attorney General’s Office and the original jurisdiction for the SCOTUS was an absolute 110% fraud that that low down dirty son of a bitch Masonic aristocratic traitor George Washington helped perpetrate by signing a piece of paper that could not replace the requirement for the Constitution’s 5th article ratification process for any changes in the Constitution.
    Not to mention, upon the ratification of the Bill of Rights December 15, 1791, any notion of any government authority over the individual sovereign was laid to rest forever by the 9th Article of the Bill of Rights and, by God, that Bill of Rights is written ratified absolute law by the absolute superior authority of the individual sovereigns for the united states.
    You f-king try to alter it ever and it will be open warfare, as the government possesses no power over the people. The people are the authority over the government and we possess the sole right of arrest, trial, and conviction, not the fraudulent Attorney General, we as individuals. Not to mention the nullification of the aristocratic claim to authority through an Attorney General and a SCOTUS, which was nullified by the Bill of Rights, which is the people’s common law.
    I’ll tell you what, mother f-ker, when we get our courts back, I will charge you as an individual and take you into the common law court. Using only the procedures and maximums of the superior law of the Bill of Rights, I will convince a jury to hang your treasonous ass.
    This article is authored by a f-king Zionist attorney. You see they are feeling the heat of the people’s authority and the people’s law and think they can slow the spread of the knowledge by putting out bullshit tripe like this.
    You cannot touch our f-king guns. The government cannot touch our f-king guns. The ratified absolute law of the 9th Article of the Bill of Rights and the 10th Article application to the states makes it prima facie absolutely clear that no authority could ever exist to deny or disparage ANY clause of any type of the ratified written law ratified by elected representatives of we the people.
    So like I said, you try and touch our law, which is superior to the Constitution which it was attached to because it is the authority of we the people over every square inch of the united states of America.
    Sharing ideas my ass. Communist propaganda and enough of it to get you a quick trial, a quick conviction, and a slow hanging. You are on the f-king ropes and you know it, and that Bill of Rights is coming for you, mother f-ker.

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