The issue of gun control has been part of American politics before the nation was founded. Debates centered around hunting, military defense, and the question if slaves and freedmen were allowed to be armed. The debate started in England and popularized in the American colonies with the spread of Henry Care’s English Liberties: or, the Freeborn subject’s inheritance (1680), and discussed in the American printed Conductor Generalis, or the office, duty and authority of Justices (1722).
The debate about gun control and the Constitution was a headache for James Madison. He set out to make both Federalists and Anti-Federalists happy and consequently upset both groups. The debates are well known and I’m not going to delve into them in this post. However, what I hope to achieve in this post is to provide two snapshots into the mind of James Madison and his evolving views of gun control. The first when he was a 34-year-old state legislator, and the second when he a 58-year-old president.
A Bill for the Preservation of Deer
In 1785, Madison twice submitted a bill to the Virginia General Assembly entitled, “A Bill for Preservation of Deer.” Both time the House failed to act. The bill read:
Not surprisingly, Madison wanted to financially penalize people who hunted out of season, but what is surprising, is that Madison revealed his understanding of how gun usage should be distinguished between personal use and common defense. Madison’s position is highlighted in the bill’s language. The law would penalize people who “shall bear a gun out of his inclosed ground, unless whilst performing military duty.” In Madison’s mind, there was a differentiation between bearing a gun for personal use and bearing arms for defense, and the state had the right to regulate the personal use of guns.
Madison believed Virginia had the right to control guns used for hunting and personal reasons. Madison’s stance on gun control is further highlighted during his presidency.
The Rittenhouse Affair
In 1778, during the American Revolution, a British ship called the Active carried American prisoners including Gideon Olmstead. Olmstead organized the prisoners and they took control of the ship and started to sail to an American port when they were overtaken by an American privateer. Both Gideon and the privateer both claimed the ships’ contents as theirs. A court case followed and Pennsylvania’s Court of Admiralty determined that Olmstead was not in full control of the Active when it the privateer found the ship. Therefore, the court split the prize four ways. Olmstead appealed to the Continental Congress and who ruled in his favor, but Pennsylvania resisted and ignored Congress’ ruling.
Pennsylvania took the portion of the money they thought belonged to Olmstead and ordered the State Treasurer, David Rittenhouse, to hold it in bond. Rittenhouse died in 1796 before the case was resolved and the bond was inherited by his daughters. In 1803, a federal judge ordered Pennsylvania to give the money to Olmstead and the state refused. In 1809, the US Supreme Court ordered the federal court in Pennsylvania to enforce the 1803 decision. Federal marshals were sent to collect the prize money from Rittenhouses’ daughters and were twice met by armed members of the Pennsylvania state militia who prevented the enforcement of the Supreme Court’s ruling.
The governor of Pennsylvania appealed to President James Madison hoping that the author of the Virginia Resolutions would side with state power. Madison responded that he was bound by the Constitution to side with the Supreme Court. Meanwhile, the federal marshall somehow got around the militia and arrested one of the Rittenhouse daughters. Another court case emerged.
A portion of the new court case explored the role of the armed state militia resisting the federal government. Afterall, Pennsylvania exercised veto power over the federal government via the gun.
Pennsylvania defended herself, in part, arguing the constitutional right of armed resistance. The US attorney (and therefore James Madison) responded that violence against the US government was the same as rebellion and revolution. There was no constitutional right to armed resistance. The jury agreed with Madison and his US attorney.
The case meant that Madison’s government did not believe in the right to armed resistance, and therefore, the Second Amendment was not about states’ being armed to fight off a tyrannical government.
In these two snapshots, we see James Madison, one of the principal architects of the Constitution, argue that that state governments have the right to control guns outside of military/militia use, and the state doesn’t have the right to armed resistance against federal authority.