Story

What Did State Constitutions Say About the Right to Bear Arms?

Authors: Edwin S. Grosvenor

Historic Era: Era 3: Revolution and the New Nation (1754-1820s)

Historic Theme:

Subject:

September/October 2019 | Volume 64, Issue 4

Text Complexity Grade Level

Many current interpretations of the Second Amendment largely ignore the first half of its short text, "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." The men who wrote the Constitution, unlike today's pundits, certainly understood what the meaning of the Second Amendment was.

To get a better understanding of what the Founders thought at the time the Second Amendment was drafted and ratified in 1791, we consulted all of the state constitutions that were in force at the time -- that is, written before the U.S. Constitution. We found, for example, that every state except Georgia and North Carolina had explicit regulations on militias into their state constitutions. They were, very specifically, "well-regulated militias."

In the Massachusetts constitution, the meticulous John Adams wrote more than 900 words about the regulation of militias.

In reviewing these constitutions, we searched for the words:

arm and arms
defense and defence
gun
militia

The results below provide a fascinating window into the thinking of the Founders. Clearly, the regulation of militias was often on their minds. For example, the Massachusetts Constitution includes over 917 words just about regulating militias -- not surprisingly, perhaps, since the document was largely written by the meticulous John Adams. (Incidentally, it remains the oldest functioning written constitution in continuous effect in the world.)

Thus it is difficult to dismiss as irrelevant the Second Amendment's prefatory clause, "A well regulated Militia, being necessary to the security of a free State," since it's clear that the drafters of the Constitution all had militias very much on their minds.

Regarding "arms," only two of the fourteen state constitutions specifically addressed an individual right to bear arms. The Pennsylvania Constitution of 1776 stated that "the people have a right to bear arms for the defence of themselves and the state." Vermont incorporated the same language the following year, when its representatives signed the constitution of the Vermont Republic in a tavern a few hours before fleeing from the advancing army of British Gen. John Burgoyne. Both states had large wilderness areas and guns were very much a necessary part of life.

Those who argue that the Second Amendment conveys an individual right to bear arms, in addition to the right for the states to maintain militias, can point to the Pennsylvania and Vermont constitutions to maintain that this right was guaranteed by at least some states.

Here is the actual wording from the constitutions. A special thanks to the Yale Law School, which has provided so many state constitutions and other primary documents online in its Avalon Project.

Contents

Articles of Confederation, March 1, 1781
Connecticut Charter - 1662
Delaware Constitution - September 10, 1776
Georgia Constitution of February 5, 1777
Maryland Constitution, November 11, 1776
Massachusetts Constitution, 1780
New Jersey Constitution of July 2, 1776
New Hampshire Constitution of January 5, 1776
New York Constitution of 1777
North Carolina Constitution of December 18, 1776
Pennsylvania Constitution of September 28, 1776
Rhode Island Charter of 1663 (no constitution until 1842)
South Carolina Constitution of March 26, 1776
Vermont Republic - Constitution of July 8, 1777
Virginia Ordinances, July 24-August 3, 1621
Virginia Draft Constitution June, 1776
Virginia Declaration of Rights and Constitution, June 29, 1776

Articles of Confederation, March 1, 1781

…every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.

The United States in Congress assembled shall have authority… to build and equip a navy—to agree upon the number of land forces, and to make requisitions from each State for its quota, in proportion to the number of white inhabitants in such State; which requisition shall be binding, and thereupon the legislature of each State shall appoint the regimental officers, raise the men and cloath, arm and equip them in a solid-like manner, at the expense of the United States; and the officers and men so cloathed, armed and equipped shall march to the place appointed, and within the time agreed on by the United States in Congress assembled. But if the United States in Congress assembled shall, on consideration of circumstances judge proper that any State should not raise men, or should raise a smaller number of men than the quota thereof, such extra number shall be raised, officered, cloathed, armed and equipped in the same manner as the quota of each State, unless the legislature of such State shall judge that such extra number cannot be safely spread out in the same, in which case they shall raise, officer, cloath, arm and equip as many of such extra number as they judge can be safely spared. And the officers and

men so cloathed, armed, and equipped, shall march to the place appointed, and within the time agreed on by the United States in Congress assembled.

Connecticut Charter - 1662

And We do further for US, Our Heirs and Successors, give and grant unto the said Governor and Company, and their Successors, by these Presents, That it shall and may be lawful to, and for the Chief Commanders, Governors and Officers of the said Company for the Time being, who shall be resident in the Parts of New-England hereafter mentioned, and others inhabiting there, by their Leave, Admittance Appointment, or Direction, from Time to Time, and at Al Times hereafter, for their special Defence and Safety, to Assemble, Martial-Array, and put in warlike Posture the Inhabitants of the said Colony, and to Commissionate, Impower, and Authorize such Person or Persons as they shall think fit, to lead and conduct the said Inhabitants, and to encounter, expulse, repel and resist by Force of Arms, as well by Sea as by Land, and also to kill, slay, and destroy by all fitting Ways Enterprises, and Means whatsoever, all and every such Person or Persons as shall at any Time hereafter attempt or enterprise the Destruction, Invasion, Detriment, or Annoyance of the said Inhabitants or Plantation, and to use and exercise the Law Martial in such Cases only as Occasion shall require;

Delaware Constitution - September 10, 1776

ART. 9. The president, with the advice and consent of the privy council, may embody the militia, and act as captain-general and commander-in-chief of them, and the other military force of this State, under the laws of the same.

ART. 28. To prevent any violence or force being used at the said elections, no person shall come armed to any of them, and no muster of the militia shall be made on that day; nor shall any battalion or company give in their votes immediately succeeding each other, if any other voter, who offers to vote, objects thereto; nor shall any battalion or company, in the pay of the continent, or of this or any other State, be suffered to remain at the time and place of holding the said elections, nor within one mile of the said places respectively, for twenty-four hours before the opening said elections, nor within twenty-four hours after the same are closed, so as in any manner to impede the freely and conveniently carying on the said election: Provided always, That every elector may, in a peaceable and orderly manner, give in his vote on the said day of election.

Georgia Constitution of February 5, 1777

No mention of militia or guns

href="https://avalon.law.yale.edu/17th_century/ma02.asp" style="color:#0563c1; text-decoration:underline">Maryland Constitution, November 11, 1776

XXV. That a well-regulated militia is the proper and natural defence of a free government.

XXVI. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature.

XXVII. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.

XLV. That no field officer of the militia be eligible as a Senator, Delegate, or member of the Council.

XLVIII. That the Governor, for the time being, with the advice and consent of the Council, may appoint the Chancellor, and all Judges and Justices, the Attorney-General, Naval Officers, officers in the regular land and sea service, officers of the militia, Registers of the Land Office, Surveyors, and all other civil officers of government (Assessors, Constables, and Overseers of the roads only excepted) and may also suspend or remove any civil officer who has not a commission, during good behaviour; and may suspend any militia officer, for one month: and may also suspend or remove any regular officer in the land or sea service: and the Governor may remove or suspend any militia officer, in pursuance of the judgment of a Court Martial.

Massachusetts Constitution of June 15, 1780

Male voters 21 years or older ratified the constitution and declaration of rights at the convention on June 15, 1780, and it became effective on October 25, 1780.

Article IV.

…All officers commissioned to command in the militia may be removed from office in such manner as the legislature may, by law, prescribe.] [Last two paragraphs annulled and superseded by Amendments, Art. LIII.]

Article V.

[In the elections of captains and subalterns of the militia, all the members of their respective companies, as well those under as those above the age of twenty-one years, shall have a right to vote.] [Annulled by Amendments, Art. LIII].

Article VII.

[The governor of this commonwealth for the time being, shall be the commander in chief of the army and navy, and of all the military forces of the state, by sea and land, and shall have full power by himself, or by any commander, or other officer or officers, from time to time, to train, instruct, exercise and govern the militia and navy; and, for the special defence and safety of the commonwealth, to assemble in martial array, and put in warlike posture, the inhabitants thereof, and to lead and conduct them, and with them to encounter, repel, resist, expel and pursue, by force of arms, as well by sea as by land,

within or without the limits of this commonwealth, and also to kill, slay and destroy, if necessary, and conquer, by all fitting ways, enterprises, and means whatsoever, all and every such person and persons as shall, at any time hereafter, in a hostile manner, attempt or enterprise the destruction, invasion, detriment, or annoyance of this commonwealth; and to use and exercise, over the army and navy, and over the militia in actual service, the law martial, in time of war or invasion, and also in time of rebellion, declared by the legislature to exist, as occasion shall necessarily require; and to take and surprise by all ways and means whatsoever, all and every such person or persons, with their ships, arms, ammunition and other goods, as shall, in a hostile manner, invade, or attempt the invading, conquering, or annoying this commonwealth; and that the governor be intrusted with all these and other powers, incident to the offices of captain-general and commander in chief, and admiral, to be exercised agreeably to the rules and regulations of the constitution, and the laws of the land, and not otherwise.

Article X.

[The captains and subalterns of the militia, shall be elected by the written votes of the train band and alarm list of their respective companies, of twenty-one years of age and upwards: the field officers of regiments shall be elected by the written votes of the captains and subalterns of their respective regiments: the brigadiers shall be elected in like manner, by the field officers of their respective brigades: and such officers, so elected, shall be commissioned by the governor, who shall determine their rank. [See Amendments, Art. V.]

The legislature shall, by standing laws, direct the time and manner of convening the electors, and of collecting votes, and of certifying to the governor, the officers elected.

The major-generals shall be appointed by the senate and house of representatives, each having a negative upon the other; and be commissioned by the governor. [See Amendments, Art. IV.]

And if the electors of brigadiers, field officers, captains or subalterns, shall neglect or refuse to make such elections, after being duly notified, according to the laws for the time being, then the governor, with advice of council, shall appoint suitable persons to fill such offices.

And no officer, duly commissioned to command in the militia, shall be removed from his office, but by the address of both houses to the governor, or by fair trial in court-martial pursuant to the laws of the commonwealth for the time being. [See Amendments, Art. IV.]

The commanding officers of regiments shall appoint their adjutants and quartermasters; the brigadiers their brigade-majors; and the major-generals their aids; and the governor shall appoint the adjutant-general.

The governor, with advice of council, shall appoint all officers

of the continental army, whom by the confederation of the United States it is provided that this commonwealth shall appoint, as also all officers of forts and garrisons.

Article XXVIII.

No person can in any case be subject to law-martial, or to any penalties or pains, by virtue of that law, except those employed in the army or navy, and except the militia in actual service, but by authority of the legislature. [See Amendments, Art. XLVIII, The Initiative, II, sec. 2.]

The divisions of the militia into brigades, regiments and companies, made in pursuance of the militia laws now in force, shall be considered as the proper divisions of the militia of this commonwealth, until the same shall be altered in pursuance of some future law.] [Annulled and superseded by Amendments, Art. LIII.]

Article LIII.

Article X of Section I of Chapter II of the constitution, the last two paragraphs of Article IV of the articles of amendment, relating to the appointment of a commissary general and the removal of militia officers, and Article V of the articles of amendment are hereby annulled, and the following is adopted in place thereof:

Article X. All military and naval officers shall be selected and appointed and may be removed in such manner as the general court may by law prescribe, but no such officer shall be appointed unless he shall have passed an examination prepared by a competent commission or shall have served one year in either the federal or state militia or in military service. All such officers who are entitled by law to receive commissions shall be commissioned by the governor.

New Jersey Constitution of July 2, 1776

VIII. That the Governor, or, in his absence, the Vice-President of the Council, shall have the supreme executive power, be Chancellor of the Colony, and act as captain-general and commander in chief of all the militias and other military force in this Colony; and that any three or more of the Council shall, at all times, be a privy-council, to consult them; and that the Governor be ordinary or surrogate general.

X. That captains, and all other inferior officers of the militia, shall be chosen by the companies, in the respective counties; but field and general officers, by the Council and Assembly.

New Hampshire Constitution of January 5, 1776

And it is further resolved… That general and field officers of the militia, on any vacancy, be appointed by the two houses, and all inferior officers be chosen by the respective companies.

New York Constitution of 1777

style="font-size:10pt">‘Whereas His Britannic Majesty, in conjunction with the lords and commons of Great Britain, has, by a late act of Parliament, excluded the inhabitants of these united colonies from the protection of his Crown; and whereas no answers whatever to the humble petition of the colonies for redress of grievances end reconciliation with Great Britain has been, or is likely to be, given, but the whole force of that kingdom, aided by foreign mercenaries, is to be exerted for the destruction of the good people of these colonies; and whereas it appears absolutely irreconcilable to reason and good conscience for the people of these colonies now to take the oaths and affirmations necessary for the support of any government under the Crown of Great Britain, and it is necessary that the exercise of every kind of authority under the said Crown should be totally suppressed, and all the popovers of government exerted under the authority of the people of the colonies for the preservation of internal peace, virtue, and good order, as well as for the defense of our lives, liberties, and properties, against the hostile invasions and cruel depredations of our enemies:

XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth.(12) And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State.

North Carolina Constitution of December 18, 1776

No mention of militia or guns

Pennsylvania Constitution of September 28, 1776

VIII. That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service when necessary, or an equivalent thereto: But no part of a

man’s property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives: Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent, nor are the people bound by any laws, but such as they have in like manner assented to, for their common good.

XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

SECT. 5. The freemen of this commonwealth and their sons shall be trained and armed for its defence under such regulations, restrictions, and exceptions as the general assembly shall by law direct, preserving always to the people the right of choosing their colonels and all commissioned officers under that rank, in such manner and as often as by the said laws shall be directed.

Rhode Island Charter of 1663 (no constitution until 1842)

and that itt shall and may bee lawfull to and for all and every such commander, governour and military officer, that shall bee soe as aforesayd, or by the Governour. or, in his absence, the Deputy-Governour, and six of the sayd Assistants, and majour parte of the Freemen of the sayd Company present att any Generall Assemblies, nominated, apoynted and constituted accordinge to the tenor of his and theire respective commissions and directions, to assemble, exercise in arms, martiall array, and putt in warlyke posture, the inhabitants of the sayd collonie, For theire speciall defence and safety; and to lead and conduct the sayd inhabitants, and to encounter, expulse, expell and resist, by force of armes, as well by sea as by lance; and alsoe to kill, slay and destroy, by all fitting wayes, enterprises and meaner, whatsoever, all and every such person or persons as shall, aft any tyme hereafter, attempt or enterprize the destruction, invasion, detriment or annoyance of the sayd inhabitants or Plantations;

South Carolina Constitution of March 26, 1776

And whereas large fleets and armies having been sent to America in order to enforce the execution of those laws, and to compel an absolute and implicit submission to the will of a corrupt and despotic administration, and in consequence thereof, hostilities having been commenced in the Massachusetts Bay, by the troops under command of General Gage, whereby a number of peaceable, helpless, and unarmed people were wantonly robbed and murdered, and there being just reason to apprehend that like hostilities would be committed in all the other colonies. The colonists

were therefore driven to the necessity of taking up arms, to repel force by force, and to defend themselves and their properties against lawless invasions and depredations.

X. That if a member of the general assembly or of the legislative council shall accept any place of emolument or any commission except in the militia, he shall vacate his seat, and there shall thereupon be a new election, but he shall not be disqualified from serving upon being reelected.

Vermont Republic - Constitution of July 8, 1777

SECTION V. The freemen of this Commonwealth, and their sons, shall be trained and armed for its defence, under such regulations, restrictions and exceptions, as the general assembly shall, by law, direct; preserving always to the people, the right of choosing their colonels of militia, and all commissioned officers under that rank, in such manner, and as often, as by the said laws shall be directed.

SECTION XLII. All field and staff officers, and commissioned officers of the army, and all general officers of the militia, shall be chosen by the General Assembly.

IX. That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore, is bound to contribute his proportion towards the expense of that protection, and yield his personal service, when necessary, or an equivalent thereto; but no part of a man’s property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives; nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law’ but such as they have, in like manner, assented to, for their common good.

XV. That the people have a right to bear arms for the defence of themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.