John Hayward: Jefferson and the right to bear arms

  • Jefferson

For the Monitor
Saturday, April 14, 2018

We all know the drill. Our lawmakers’ hands are tied when it comes to passing laws infringing on our right to bear arms. The Second Amendment states this and our Founding Fathers must have included it for a reason.

Thomas Jefferson’s quote “No freeman shall ever be debarred the use of arms” has been used to reinforce this belief over and over again. The quote seems pretty cut and dried until you consider that the second and third drafts of the same statement added “within his own lands or tenements.” It seems Jefferson seriously considered that there should be some limitations on the individual’s right to gun ownership. It makes sense to own a gun for self-defense on your own property, but a different set of issues comes up when this gun is taken into public space.

Instead of quotes and words, let’s look at actions of our Founding Fathers.

The Continental Congress created in 1775 “Committees of Safety” to be formed in each colony/state. These committees were tasked with enrolling local citizens – white men aged 16 to 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. Sounds like gun registration in order to create a “well-regulated militia.”

The Congress took this a step further. They engaged in 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 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.

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.” Taken in this context, Jefferson’s statement is much clearer.

In 1786, Boston prohibited 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.

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 firearms arises from an exercise of this basic liberty.

When our lawmakers tell us their hands are tied, it is just an excuse for inaction.

(John Hayward lives in Allenstown.)