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New research on the Second Amendment:

Now online:

Stephen P. Halbrook, "St. George Tucker's Second Amendment: Deconstructing 'The True Palladium of Liberty,'" 3:2 Tennessee Journal of Law and Policy 183 (2007). St. George Tucker was the leading legal commentator of the Early Republic. His edition of Blackstone, which included copious annotations and appendices written by Tucker, was the foundational legal treatise of its era, and the first scholarly analysis of the new U.S. Constitution, and of how American law was diverging from its British ancestor. Halbrook's article shows that Tucker regarded the Second Amendment as an individual right which included a right to own firearms for self-defense and hunting. The article also points out deficiencies in Saul Cornell's treatment of Tucker; Cornell has a tendency to quote Tucker's analysis of militia issues as if the analysis were about the Second Amendment, and to gloss over what Tucker actually wrote about the Second Amendment.

"What Does 'Bear Arms' Imply?" Working Paper by Clayton Cramer and Joseph Olson. Gun prohibition advocates, including the D.C. government in its brief in D.C. v. Heller, contend that the words "bear arms" in the Second Amendment have an exclusively military connotation, and therefore "the right of the people to keep and bear arms" refers exclusively to bearing arms as part of service in a formal state militia. Cramer and Olson show that "bear arms" never had an exclusively military connotation, either before ratification of the Second Amendment, or in the following decades.

"Pistols, Crime, and Public Safety in Early America" is another Working Paper by Cramer and Olson. The authors show that the governments of Founding Era were familiar with handguns, and never regulated them differently from long guns. The typical pistol of the late 18th century could fire only a single shot; however, multi-shot pistols had already been invented; many handgun owners provided themselves with multi-shot capacity by carrying two or more handguns, which was not difficult, since there were many very compact handguns. Accordingly, the successful commercial development of the multi-shot handgun (the Colt's revolver in the 1830s) was (unlike, for example, radio) an example of technological progress that was well within the contemplation of the Founders.

Waldensian (mail):
Cramer's work on firearms issues is very thought-provoking. Just don't get him talking about "the leftists."
1.8.2008 12:14pm
David M. Nieporent (www):
"What Does 'Bear Arms' Imply?" Working Paper by Clayton Cramer and Joseph Olson. Gun prohibition advocates, including the D.C. government in its brief in D.C. v. Heller, contend that the words "bear arms" in the Second Amendment have an exclusively military connotation,
...relying on that awful work by Gary Wills, who based his claims, as I recall, on the fact that it referred to the military when used in Latin, in Ancient Rome.


Cramer's work on firearms issues is very thought-provoking. Just don't get him talking about "the leftists."
YM the homosexuals.
1.8.2008 12:30pm
Dilan Esper (mail) (www):
It sounds like the first two works may be very good. There's certainly plenty of evidence of an individual right, and also that "bearing arms" was either not limited to military uses, or, if one were to tie it to military uses, would be within the broad sense that the "militia" included the entire citizenry at the time the Constitution was adopted, rather than the narrow sense of military service we have now.

But Cramer and Olson's argument seems silly. Yes, there were various types of guns available at the time of the authoriship of the Second Amendment, and these included pistols.

But so what? This argument would seem deeply unsatisfying from both the gun rights and gun control perspective. From the gun rights perspective, plenty of arms that people want to carry, such as semiautomatics, guns with large magazines, etc., were clearly not around when the Second Amendment was adopted. An interpretation that allows unlimited restrictions of THOSE arms wouldn't be very friendly to gun rights.

On the other hand, from the gun controller's perspective, the key criterion is dangerousness, not historical pedigree. Those 18th Century handguns might be considered dangerous and justifying regulation, whereas a type of rifle or shotgun invented later might not be considered as dangerous.

I don't think either side of this debate wants the Second Amendment to be interpreted based on what guns were and weren't available to the framers.
1.8.2008 12:45pm
Clayton E. Cramer (mail) (www):

But so what? This argument would seem deeply unsatisfying from both the gun rights and gun control perspective. From the gun rights perspective, plenty of arms that people want to carry, such as semiautomatics, guns with large magazines, etc., were clearly not around when the Second Amendment was adopted. An interpretation that allows unlimited restrictions of THOSE arms wouldn't be very friendly to gun rights.
Read all the way to the end, where we point out that the same reasoning that justifies banning modern weapons because they didn't exist in 1791 also justifies warrantless wiretapping, torture of terrorists, censorship of "assault media" and so on--and that the technological improvements in small arms with respect to lethality are only an order of magnitude or so--unlike the technological improvements in mass media.
1.8.2008 12:53pm
U.Va. 3L:
Anyone know what the ominous-looking "Under Review by SSRN" backgrounds on the Cramer &Olson papers mean? The only other paper I remember with that "warning" was the paper about the F-word from a few years back.
1.8.2008 1:27pm
Dilan Esper (mail) (www):
Clayton:

I understand that is your position. Truth be told, it is mine too. Certainly decisions like Katz, the thermal imaging decision, at least the limited restrictions the Supreme Court has placed on drug testing, and the decisions on internet pornography demonstrate how we have to apply constitutional principles to new technologies. I don't think a gun should be considered outside the Second Amendment just because it didn't exist at the time of the adoption of the Bill of Rights; I also don't think a gun should be considered automatically protected by the Second Amendment just because it existed at that time. The important inquiry is whether the weapon fits within the concept of the armed citizenry that the Second Amendment was designed to protect. (And as I said, I also agree with you that this concept is not limited to "military" uses, at least in the way we think of that term now.)

But nonetheless, inviting a discussion as to what gun technologies were available to the framers shifts the inquiry in exactly the direction where we don't want this to go. And as I said, it could lead to the adoption of a test that would be unacceptable to both sides of this debate-- gun rights advocates who don't think Second Amendment rights should be limited to what was available in 1791, and gun controllers who think that the criterion should be dangerousness, not historical pedigree.
1.8.2008 1:33pm
BD:
Based on what I've read about the Second Amendment, it doesn't have anything to do with our modern-day notion of a militia. As used in the Second Amendment, "militia" refers to the entire adult (non-elderly) male population. "Well-regulated" means there's a defined division of forces into regiments and according to rank. So the amendment says, in effect, because it's important for the adult male population to be in a position to be called into service if and when they are needed, the government can never get in the business of taking guns out of the hands of private citizens.

Obviously, people no longer serve in the military on the as-needed basis reflected in the Second Amendment. However, from a logical standpoint, that historical development cannot operate to vitiate the right of the people to keep and bear arms. Why? Because the establishment of a standing army comprised of professional soldiers is itself a policy of the government. To say that this government policy essentially nullifies the people's right to own guns would require an interpretation of the amendment that is absurd on its face. It would require reading the Amendment to say, "The government can never take away people's guns unless the government decides that it's no longer important to have a citizenry that would be ready to be called into service if needed." But it IS important, according to the very text of the Second Amendment.

In other words, while the "militia" clause may seem outmoded given our current approach to staffing the military, it remains part of the Constitution and can't simply be disregarded just because many people no longer regard private gun ownership as a good or necessary thing.

Anyway, that's my take on it.
1.8.2008 1:34pm
33yearprof:
Anyone know what the ominous-looking "Under Review by SSRN" backgrounds on the Cramer &Olson papers mean?


It means whoever put it up on SSRN failed to check the box, nothing more. If you aren't sure an article is formated satisfactorily, the staff will review it for you. IIRC, if you don't check the OK NOW box, this happens automatically.
1.8.2008 2:12pm
Clayton E. Cramer (mail) (www):

But nonetheless, inviting a discussion as to what gun technologies were available to the framers shifts the inquiry in exactly the direction where we don't want this to go. And as I said, it could lead to the adoption of a test that would be unacceptable to both sides of this debate-- gun rights advocates who don't think Second Amendment rights should be limited to what was available in 1791, and gun controllers who think that the criterion should be dangerousness, not historical pedigree.
There are certainly weapon systems available today that have absolutely no equivalent in 1791. The backpack nuclear weapon (Special Atomic Demolition Munition, is what our government called it) is an example of something that conforms (barely) to the common use of "arms" at the time--and yet has a level of destructiveness that is many orders of magnitude beyond any arm of 1791. There needs to be a dividing line between weapons that are clearly outside the realm of what anyone could have imagined in 1791, and weapons that are simply logical progressions from what was widely owned in 1791.
1.8.2008 2:15pm
PLR:
Interesting piece. I'm not a gun person or Second Amendment scholar, and I've always wondered about that verb "bear." Can it really mean we have a constitutional right to "bear" the arms on our person in public places that is coextensive with our presumed individual right to "keep" the arms?
There needs to be a dividing line between weapons that are clearly outside the realm of what anyone could have imagined in 1791, and weapons that are simply logical progressions from what was widely owned in 1791.

You'll have to pry my light saber and my strontium death ray out of my cold dead hands.
1.8.2008 2:28pm
RowerinVa (mail):
BD has it exactly right. The amendment has two parts.

First, it avers as a matter of Constitutional pronouncement that that a well-regulated militia is necessary to the security of a free state. The arguments of most gun rights proponents, including the current DC government, reject this pronouncement. They say that the militia no longer exists or should exist, and is not (i.e., no longer) necessary. But the Second Amendment has put that argument beyond use. Unless gun rights opponents secure a nullifying amendment, the nation's policy is set in stone: the militia exists and is necessary.

Second, the text states that the right of the people to bear arms shall not be infringed. The nature of that right can be fairly debated, but what cannot be fairly debated is that such a right must preserve sufficient arms, in the hands of the citizenry, to equip the militia to which the first clause refers.

Read this way, the initial "militia" clause becomes not a limiting clause -- as gun rights opponents would have it be -- but a potentially expansive clause. Since the individual gun rights must be such that a meaningful militia can be constituted from the citizenry, it becomes difficult to argue that the 2008 citizenry can be limited to 1787 firearms technology. Else, how can a "necessary" militia ever exist in 2008? So the militia clause could potentially increase the power of firearms allowed, rather than limit them.
1.8.2008 2:29pm
dew:
BD: <i>“Well-regulated" means there's a defined division of forces into regiments and according to rank.</i>

Can you show how this is correct? I do not specifically study gun history like C. Cramer, but I do spend a lot of time researching the colonial period, and I have never heard this (possible) interpretation for “well regulated” militia in the 18th century. I think many reasonable historians interpret it as meaning “in good order” as in a “well regulated clock”. Some folks who interpret the 2nd amendment very narrowly suggest it should mean “subject to regulations of the government”. I suppose I am partly curious because local/state militias in the 18th century were, in fact, typically organized into companies, and the companies into regiments or battalions.
1.8.2008 2:32pm
dew:
There are certainly weapon systems available today that have absolutely no equivalent in 1791.

On the other hand, hand-held grenade launchers and fairly large individual guns - arquebuses and punt guns (though punt guns might just be an arquebus mounted in a boat) - date back at least to the 17th century. Should these be "arms" under the 2nd amendment?
1.8.2008 2:42pm
Avatar (mail):
If we're examining the amendment with an eye towards weaponry available at the time of the founders, er... Weren't they more or less comfortable with privately-owned field artillery? That pretty much sinks the "dangerousness" argument - a load of cannister in a packed crowd would be far worse than a .50 machine gun on full auto, after all.

Seriously, for the time, that's essentially the top-end military weapons system, with absolutely no civilian utility whatsoever (unless "home defense" extends to fighting off an Indian raid, I suppose.) It's certainly fair to argue that certain modern weapons have capabilities that make them necessary for regulation (nuclear weapons) and that the state can regulate certain other aspects ("you have the right to own a tank, but we'll be damned if you can drive it anywhere, including to your house!"), but you can't really argue that a semi-automatic rifle is somehow more lethal than 18th-century cannon.
1.8.2008 2:46pm
J. F. Thomas (mail):
but you can't really argue that a semi-automatic rifle is somehow more lethal than 18th-century cannon.

How about this. I'll challenge you to a duel. I get an unloaded semi-automatic rifle with a full clip. Heck, I'll even load the clip. You get an unloaded 18th century cannon with whatever kind of rounds in whatever amount you want. We'll start at 50 paces.

Actually. I bet I could still win if I had a dull butcher knife as you couldn't kill an individual person with an 18th century cannon unless he was tied to a barn door and you had several aiming shots to get it right.
1.8.2008 3:20pm
J. F. Thomas (mail):
For a bunch of gun nuts, you sure don't know much about 18th century ordnance. Really, saying that the founders anticipated the lethality of even the military weaponry of the mid-19th century. Shame on you. Even the Generals who had the weaponry in the mid-19th century didn't appreciate its lethality. That is why wars got so damn bloody as the century went on.
1.8.2008 3:26pm
EIDE_Interface (mail):
JF THomas: your trolling is tiring.
1.8.2008 3:28pm
J. F. Thomas (mail):
a load of cannister in a packed crowd would be far worse than a .50 machine gun on full auto, after all.

Except of course by the time you loaded a cannister, everyone would have the chance to calmly walk away.
1.8.2008 3:29pm
J. F. Thomas (mail):
JF THomas: your trolling is tiring.

It is not trolling to point out that comparisons between 18th and 21st century weapon systems are completely ridiculous. The lethality, accuracy, speed and ease of use were beyond the comprehension of the founders. In fact the advances in weaponry fifty years after the 2nd amendment was written were beyond the comprehension of the founders.
1.8.2008 3:33pm
J. F. Thomas (mail):
EIDE,

Have you ever seen the effort it takes to fire a Revolutionary War era cannon? If you had, you would know how perfectly ridiculous Avatar's post is.
1.8.2008 3:35pm
Tony Tutins (mail):
Mr. Cramer: One thing antigun advocates always cite to prove that "bear arms" had a strictly military sense is this preliminary version of the Second Amendment (below). I quickly skimmed your article, but did not notice that you addressed it. If not, I think your article would be more powerful if you did address it. Ideally, Quakers (the "religiously scrupled" traditionally exempted from killing the enemy) would neither have hunted nor armed themselves for self-defence, making "bear arms" refer to all uses of firearms.

HOUSE COMMITTEE REPORT, July 28, 1789.

...[6] "A well regulated militia1, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms."2
1.8.2008 3:46pm
Waldensian (mail):

a load of cannister in a packed crowd would be far worse than a .50 machine gun on full auto, after all.

Well, if I were in the crowd, I would be very disappointed that these were my only two choices. With that said, I'd take the cannister over a ".50 machine gun on full auto"

The Ma Deuce is a fearsome machine, which is one of the many reasons we still use it.
1.8.2008 3:50pm
J. F. Thomas (mail):
Ideally, Quakers (the "religiously scrupled" traditionally exempted from killing the enemy) would neither have hunted nor armed themselves for self-defence, making "bear arms" refer to all uses of firearms.

I didn't realize that Quakers had problems with hunting.
1.8.2008 3:51pm
K Parker (mail):
dew,

"Well-regulated" (a.k.a "properly functioning") would most definitely include being organized into companies (as well as into larger and smaller units.) The militia is supposed to be an effective fighting force, not just an armed mob.

J.F. Thomas,

How interesting: you've never heard of grapeshot. I'll let you do the googling; it's good exercise. Plus your hypo is preposterous in that a cannon is not, and never has been, a dueling weapon. But not only is dueling far from the main use for arms, when we're talking about the 2nd Amendment and the security of a free state, dueling doesn't even enter the picture.
1.8.2008 3:57pm
J. F. Thomas (mail):
Well, if I were in the crowd, I would be very disappointed that these were my only two choices. With that said, I'd take the cannister over a ".50 machine gun on full auto"

So would I. As I said, there would be plenty of time to simply walk out of the scatter range of the cannon as it was loaded. Then as the perpetrators struggled to reload (assuming nobody figured out they weren't just some wacky Revolutionary War reenactors before the first shot), they could easily be tackled and subdued before they even got a second shot off (if the cannon didn't blow up in their face or misfire, which cannons of that era had a nasty tendency to do).
1.8.2008 4:01pm
Tony Tutins (mail):

I didn't realize that Quakers had problems with hunting.

They opposed hunting because the purpose was more for recreation, not food, and because hunting was not the most humane way to kill a food animal. But I bring it up so that Clayton can prepare a counterargument.
1.8.2008 4:02pm
tvk:
Although the VC is not subject to any fairness doctrine, and although Kopel's (and the VC generally) views on this subject are well known, wouldn't it at least be more respectable to include some scholarship that goes against a individual rights interpretation? I'm no expert in the area, but given historians' tendencies to argue about everything, I doubt that the academic community is unanimous on this point.
1.8.2008 4:04pm
J. F. Thomas (mail):
How interesting: you've never heard of grapeshot.

Of course I have heard of grapeshot. The point is that a 18th century cannon is incredibly difficult to load, aim, and fire. I could certainly be out of way, and actually be behind him before he even got it loaded. A person would have to be immobilized (or being ordered to march into a cannon barrage) to actually be hit by cannon shot. Anyone who kept one certainly did not intend to use it for self defense, it would have been the equivalent of keeping your National Guard Unit's Tank in your garage.

Even the standard issue musket (the British Brown Bess) was next to useless for self defense. Its only power lay in mass firepower. The British didn't march in tight formations because they were stupid but because it was the only way to lay down a wall of lead into their enemies.
1.8.2008 4:12pm
Clayton E. Cramer (mail) (www):


On the other hand, hand-held grenade launchers and fairly large individual guns - arquebuses and punt guns (though punt guns might just be an arquebus mounted in a boat) - date back at least to the 17th century. Should these be "arms" under the 2nd amendment?
Arms were things, according to Webster's 1828 Dictionary of the American Language, that you could pick up and use to strike or attack another person. If you can pick it up, it is an "arm" by the standards of the time. A cannon probably doesn't qualify (although a grenade or mortar might).
1.8.2008 4:18pm
Waldensian (mail):

I'm no expert in the area, but given historians' tendencies to argue about everything, I doubt that the academic community is unanimous on this point.

They're not, but I think that once Larry Tribe got on the individual-right bandwagon, the jig was pretty much up.

The individual rights position is quite strong as a matter of history and textual interpretation.

Some may think it's a bad idea to have such an individual right enshrined in the Constitution. I disagree, but that's another question entirely. And some may think it has no application to the states. I agree, but again, a different question.
1.8.2008 4:19pm
Avatar (mail):
Thomas, if you've heard of grapeshot, you must have forgotten what you heard about it, or you wouldn't be talking about "aiming". ;p

(Came across a manual online of how to use your historic cannon for deer hunting - most of the tips within weren't so much "this is how you kill the deer", but more like "this is how you hide the cannon from the game warden afterwards". Several months ago, forgot to save the link...)

Naturally it wasn't a device that lent itself to quick deployment, and under plenty of circumstances it's next to useless - you can't really use a cannon to rob a bank, for example. But those are features of its size, and be honest, practically all weapons were pretty cumbersome muzzle-loaders back then.

All that said, doesn't that hammer home the argument even more strongly? Those cannon were for military use, but they were in civilian hands, privately owned.

Point taken about the Ma Deuce, though.
1.8.2008 4:21pm
Waldensian (mail):

I get an unloaded semi-automatic rifle with a full clip.

Ack! This is a usage that makes the prescriptivist in me come out (a rare thing).

"Magazine," please. Unless you're referring to an SKS or Garand or the equivalent, I guess.
1.8.2008 4:22pm
Clayton E. Cramer (mail) (www):

It is not trolling to point out that comparisons between 18th and 21st century weapon systems are completely ridiculous. The lethality, accuracy, speed and ease of use were beyond the comprehension of the founders. In fact the advances in weaponry fifty years after the 2nd amendment was written were beyond the comprehension of the founders.
And you could argue with the same reasoning that the development of WMDs means that the dangers of terrorists are far higher today than in 1791--and therefore all those procedural protections against warrantless searches don't apply.

We weren't fighting enemies that were prepared to die to kill thousands of Americans in 1791. Perhaps that "cruel and unusual punishment" clause is obsolete, when confronting Islamic terrorists. Maybe, by your reasoning, the Court should hold that we need more effective deterrents than death--say, inflicting excruciating pain on a captured terrorist for years on end as a method of discouraging suicide bomber attacks.

The news organizations of today are capable of spreading lies hundreds of thousands of times faster today than in 1791. Remember when one of the news magazines incorrectly reported that soldiers flushed a Koran at Gitmo? By your reasoning, modern "assault media" shouldn't be protected by the First Amendment--only hand cranked printing presses.
1.8.2008 4:25pm
K Parker (mail):
J.F.,

Hey, you're the one who keeps bringing self-defense into what is really a discussion about military usefulness, so have at it.
1.8.2008 4:26pm
Waldensian (mail):
Geez, upon further review, I guess even an SKS wouldn't qualify if you're being really nit picky. I thus humbly prescribe myself.
1.8.2008 4:26pm
Waldensian (mail):

The news organizations of today are capable of spreading lies hundreds of thousands of times faster today than in 1791.

I sense that the Cramer "leftist" thing is about to emerge.

Wait for it.... Wait for it....
1.8.2008 4:28pm
Clayton E. Cramer (mail) (www):

Even the standard issue musket (the British Brown Bess) was next to useless for self defense. Its only power lay in mass firepower. The British didn't march in tight formations because they were stupid but because it was the only way to lay down a wall of lead into their enemies.
However, pistols and blunderbusses were quite effective for self-defense, and that's why both were pretty commonly owned arms in 1791. I wouldn't compare a 1791 blunderbuss with a modern shotgun--but I do suggest that when you look at how much the situation has changed with respect to medical care then and now, improved communications, the fact that we have regular police departments today that can respond to a cell phone call to 911, the difference between a guy with a blunderbuss then and a guy with a handgun today, isn't orders of magnitude apart in terms of lethality.
1.8.2008 4:29pm
Clayton E. Cramer (mail) (www):


Ideally, Quakers (the "religiously scrupled" traditionally exempted from killing the enemy) would neither have hunted nor armed themselves for self-defence, making "bear arms" refer to all uses of firearms.

I didn't realize that Quakers had problems with hunting.
Quakers may have had a problem with hunting, but there are plenty of other pacifist groups in America that did not, and owned guns for hunting. North Carolina, for example, at one point requested (but did not order) that members of pacifist groups sell their guns to the government for redistribution to soldiers or militias.
1.8.2008 4:31pm
Andy Freeman (mail):
> The British didn't march in tight formations because they were stupid but because it was the only way to lay down a wall of lead into their enemies.

Except that that's not true - there are other ways. (Note that a tight formation doesn't guarantee a wall of lead.) The tight formation has another purpose, which is why the Romans used it.

Also, Thomas' "walk safely away" argument applies as well to hand-carried muzzle loaders, yet they also had military utility, Thomas' claims notwithstanding. (I do like Thomas' implication that the other side would order their forces to be good targets.)

However, let's take him at his word that cannon are useless. Then surely he'll have no objection to completely deregulating them.
1.8.2008 4:36pm
Clayton E. Cramer (mail) (www):

I sense that the Cramer "leftist" thing is about to emerge.

Wait for it.... Wait for it....
Wait all you want. News organizations aren't noted for their accuracy. The example I gave was probably driven by a mix of political goals and sensationalism, but the problem doesn't go away: if the Second Amendment only protects 1791 arms, then it only protects methods of printing and speaking used in 1791 America, and only protects religions that were present in America in 1791. The protections against warrantless search and seizure would only apply to 1791 technologies, so mail would be secure, but warrantless wiretapping, email examination, use of non-intrusive searches (infared, X-rays) would be exempt from warrant requirements. But J.F. Thomas isn't going to buy into that argument.
1.8.2008 4:36pm
dew:
K Parker: "Well-regulated" (a.k.a "properly functioning") would most definitely include being organized into companies (as well as into larger and smaller units.) The militia is supposed to be an effective fighting force, not just an armed mob.

I was looking for actual evidence that "well regulated" means "organized into military units". Simply stating that you think it means that does not make it so, although if you have special expertise in this area I might be willing take your word for it.

Also, simply taking "well ordered" as generically "functioning well" works in the structure of the 2nd amendment: "A Militia functioning well, being necessary..." makes sense when read to completion. "A Militia organized into units, being necessary..., the right to..." does not make much sense. But if the founders understood that formal militia organization was implicit in "well regulated", I would be interested in any citations on that.
1.8.2008 4:37pm
Andy Freeman (mail):
> wouldn't it at least be more respectable to include some scholarship that goes against a individual rights interpretation?

Feel free to post relevant cites and excerpts. For that matter, the conspiracy has often had articles by guests.

It's not that hard to find; it dominates the mainstream media and academia. Given that domination, it's curious that one would find its absence in one small corner of the web "unrespectable", but ....

Defending this "scholarship" may be a different matter,
1.8.2008 4:42pm
Clayton E. Cramer (mail) (www):
Avatar wrote:

Naturally it wasn't a device that lent itself to quick deployment, and under plenty of circumstances it's next to useless - you can't really use a cannon to rob a bank, for example. But those are features of its size, and be honest, practically all weapons were pretty cumbersome muzzle-loaders back then.
I've actually held one of Paul Revere's pocket pistols in my hand. It is actually not cumbersome at all. It is slightly smaller and lighter than the Colt Mustang .380 that I usually carry. Now, it is true that the Mustang holds six shots, and that pistol only holds one. But if I had to carry a brace of those pistols on the streets of Boston (as gentlemen often did) in 1791, I would feel relatively safe. Why? Because a robber of that era who got shot anywhere in the abdomen would be far more likely to die from it than if his modern counterpart were shot with a modern pistol. Medical and communication technology has advanced dramatically since 1791.
1.8.2008 4:44pm
Tony Tutins (mail):

there are plenty of other pacifist groups in America that did not, and owned guns for hunting.

So if pacifists could hunt, then "bear arms" in the religiously scrupulous [person who] shall [not] be compelled to bear arms would seem to have a purely military meaning, contrary to the conclusion drawn by your article.
1.8.2008 4:45pm
Clayton E. Cramer (mail) (www):
If in doubt as to what "well-regulated militia" meant, ask Hamilton. He tells us in Federalist 29:

To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.
It wasn't having the government in control that made a militia "well-regulated" but enough practice to be an effective military force.
1.8.2008 4:48pm
J. F. Thomas (mail):
Perhaps that "cruel and unusual punishment" clause is obsolete, when confronting Islamic terrorists. Maybe, by your reasoning, the Court should hold that we need more effective deterrents than death--say, inflicting excruciating pain on a captured terrorist for years on end as a method of discouraging suicide bomber attacks.

Actually, it is just the opposite. Through Supreme Court decisions and lawmaking through domestic laws and our agreeing to international treaties (e.g., Geneva, the International Convention Against Torture and Other Cruel, Degrading and Humiliating Treatment or Punishment) and our demonstrated willingness to participate fully in internation trials of crimes against humanity, we have fully demonstrated that we actually have much higher standards than the founders.

So what's your point?

Thomas, if you've heard of grapeshot, you must have forgotten what you heard about it, or you wouldn't be talking about "aiming"

You still want to fire your grapeshot (where you have basically turned your cannon into a very large shotgun) in the direction of the enemy. And of course its effective range is much reduced over cannister or ball.
1.8.2008 4:49pm
Clayton E. Cramer (mail) (www):


So if pacifists could hunt, then "bear arms" in the religiously scrupulous [person who] shall [not] be compelled to bear arms would seem to have a purely military meaning, contrary to the conclusion drawn by your article.
The term "bear arms" is used in both senses through this period. When the House was debating the "religiously scrupulous" clause, they were clearly thinking about militia duty. The government wasn't about to force Quakers to go hunting, or to defend themselves.

I rather doubt that the First Congress spent much time worrying about the possibility that "freedom of speech" might be violated by laws prohibiting husbands from talking to their wives. That simply wasn't on the agenda of governmental action, because it was assumed that you had that right. Similarly, the First Congress didn't spend any time that I can find worrying about the possibility that the government might disarm its citizens so that they couldn't defend themselves. The right to self-defense was so widely assumed that no one would bothered to argue the point.
1.8.2008 4:52pm
Clayton E. Cramer (mail) (www):


Perhaps that "cruel and unusual punishment" clause is obsolete, when confronting Islamic terrorists. Maybe, by your reasoning, the Court should hold that we need more effective deterrents than death—say, inflicting excruciating pain on a captured terrorist for years on end as a method of discouraging suicide bomber attacks.

Actually, it is just the opposite. Through Supreme Court decisions and lawmaking through domestic laws and our agreeing to international treaties (e.g., Geneva, the International Convention Against Torture and Other Cruel, Degrading and Humiliating Treatment or Punishment) and our demonstrated willingness to participate fully in internation trials of crimes against humanity, we have fully demonstrated that we actually have much higher standards than the founders.

So what's your point?
Since your argument is that modern weapons are so far and above the weapons of 1791, they shouldn't enjoy the protection of the Second Amendment. By the same reasoning, the rest of the Bill of Rights only protects technologies and situations of 1791.
1.8.2008 4:55pm
K Parker (mail):
Andy,
However, let's take him at his word that cannon are useless. Then surely he'll have no objection to completely deregulating them.
Touche!
1.8.2008 4:57pm
J. F. Thomas (mail):
Except that that's not true - there are other ways. (Note that a tight formation doesn't guarantee a wall of lead.) The tight formation has another purpose, which is why the Romans used it.

Yes, It was also a defense against cavlary charges. And in the age of gunpowder, the bright uniforms, drums, and big flags aided in keeping units together. But this isn't a forum on 18th century battle tactics.

And yes, muzzle loading cannons are useless--are they regulated? I don't even know. I can't imagine why they would be or why anyone other than a reenactor would want a functioning one. I would seriously doubt the sanity of anybody who wanted to use a Revolutionary era cannon for self-defense.
1.8.2008 5:00pm
glangston (mail):
In fact the advances in weaponry fifty years after the 2nd amendment was written were beyond the comprehension of the founders.



So far as I know, fact or not, something being beyond the comprehension of the Founders has not been a legal argument of any merit or value. Firearms still serve their fundamental purpose, whether that be self-defense, military use, or sport.
1.8.2008 5:02pm
Chuck Pelto (mail) (www):
TO: All
RE: Another Aspect

Of late, I've been reading Catton's accounts of the Civil War.

In it, around 1862-3, President Lincoln called on the states to provide 300,000 more soldiers. The way the order was couched, it mentioned the state militias. And—here's the kicker—the definition of militia, as Catton took it from his research, was any able-bodied male of military age in the state.

Indeed, I understand that New Mexico can call upon every able-bodied male of military age to respond to an emergency, under penalty of law for refusing. Someone mentioned that Santa Fe might enact that call to man the fire-lines outside of town during a major forest fire that was approaching the city, a few years ago.

The point being that if the state militia is called upon, they need to have whatever weapons are at hand to deal with particular emergencies. That includes personal firearms.

Just an additional thought.

Regards,

Chuck(le)
[When going to a gun fight, bring all your guns. And, bring all your friends with all of THEIR guns, too.]
1.8.2008 5:04pm
r78:
Cramer - are you actually able to hit anything with that Colt Mustang?

I bought one for my concealed carry but even at 7 yards I sometimes shout outside of the silhouette. I replaced it with a Sig 232, but I'm wondering if I should get the Mustang out and send it off to be tuned . . .
1.8.2008 5:06pm
J. F. Thomas (mail):
Since your argument is that modern weapons are so far and above the weapons of 1791

Where did I make this argument? It is apparently your argument that today's military weapons were logically and inevitably anticipated by the founders and that therefore are included in the right to bear arms. All I am saying is this line of arguing is ridiculous and patently unfair on its face. Furthermore, the means to convey a right (the press or speech) is completely different than the right itself (bear arms). So comparing printing or communications technology to arms technology is inappropriate.
1.8.2008 5:07pm
J. F. Thomas (mail):
In fact the advances in weaponry fifty years after the 2nd amendment was written were beyond the comprehension of the founders.

As I said, I am not arguing which arms fall under the purview of the 2nd amendment, just the logic and factual basis of Clayton's argument.
1.8.2008 5:10pm
Clayton E. Cramer (mail) (www):
J.F. Thomas writes:

Actually. I bet I could still win if I had a dull butcher knife as you couldn't kill an individual person with an 18th century cannon unless he was tied to a barn door and you had several aiming shots to get it right.
A more accurate comparison is to the kind of arms that were commonly owned in 1791. Blunderbusses are much more common than I would have expected--lots of them show up on purchase and impressment records during the Revolution. Would I rather have a blunderbuss or an AR-15 with a 30 round magazine? I would rather have the AR-15. But at a distance of 25 yards, it is no guarantee that the person with the AR-15 is going to survive a fight with the guy with the blunderbuss. The blunderbuss is one shot--but dozens of balls flying through the air, and spreading more rapidly than most non-NFA shotguns today.

Of course, hand grenades (roughly equivalent to a modern pipe bomb) were for sale in the 1780s. I know that, because I have ads that offer them for sale. Would I want to get into a fight with someone who had four or five of those in his knapsack while armed with a rifle? No, not really.

The fowling pieces and muskets of the era were often loaded with shot, and again, only one shot, but that one shot could be quite deadly, especially in an era before antibiotics, antiseptics, telephones, ambulances, modern surgical techniques, transfusions, sterile dressings and sutures.

Yes, modern weapons are more deadly than those of 1791. If all the attendant technologies had not advanced at an even faster rate, a 2008 firearm would be several orders of magnitude more dangerous than a 1791 firearm. But the fact is that a crazy person with six pistols in his belt in 1791, or with a blunderbuss, would be close to as lethal as a crazy person today carrying a semiauto pistol, or a pump action shotgun.

If you want to point to changes that have been dramatic, that make some of our problems more severe, I can point to two:

1. In 1791, a person convicted of rape or murder would very likely never be allowed back on the street. Appeals were rapid, and those convicted of capital crimes were often hung within a few months.

2. In 1791, a person who was violently insane would be hospitalized against his will, and often with rather minimal due process. Today, those who have histories of violent insanity are seldom hospitalized against their will, and when they are, they are released in hours to days. Cho Seung-Hui is one particularly obvious example, but I have dozens of others on my list who were obviously severely mentally ill, but were not permanently locked up until they committed mass murder.
1.8.2008 5:12pm
Chuck Pelto (mail) (www):
TO: J.F. Thomas
RE: Old Weapons Are Not Obsolete

"I would seriously doubt the sanity of anybody who wanted to use a Revolutionary era cannon for self-defense." -- J.F. Thomas

You can do a LOT of damage with an old muzzle-loaded cannon; some powder, some nails, some broken glass.

Would YOU like to 'visit' the house, as a member of some SWAT team doing a No-Knock, on someone who had something like that?

But you don't even need so much iron-or-bronze, these days....if you think on it. After all, cannon were used to hurl munitions many hundreds of yards. Most houses aren't quite that large. Some simple 3/4" galvanized steel pipe and a 12-gauge shotgun round serves the same purpose for most homes.

And who needs high-explosives when ammo-nitrate/diesel-fuel or even so much bread flour will do interesting things...if you know what you're doing.

Regards,

Chuck(le)
1.8.2008 5:12pm
Clayton E. Cramer (mail) (www):

Cramer - are you actually able to hit anything with that Colt Mustang?

I bought one for my concealed carry but even at 7 yards I sometimes shout outside of the silhouette. I replaced it with a Sig 232, but I'm wondering if I should get the Mustang out and send it off to be tuned . . .
The Mustang has a useful range of about seven meters. You have to aim carefully, and recognize the limitations of such a tiny weapon. But since most defensive uses of a handgun take place at distances of less than seven meters...
1.8.2008 5:15pm
luagha:
We weren't fighting enemies that were prepared to die to kill thousands of Americans in 1791. Perhaps that "cruel and unusual punishment" clause is obsolete, when confronting Islamic terrorists. Maybe, by your reasoning, the Court should hold that we need more effective deterrents than death--say, inflicting excruciating pain on a captured terrorist for years on end as a method of discouraging suicide bomber attacks.

Would it be considered 'cruel and unusual punishment' to desecrate the body of an Islamic terrorist with pig fat after he dies and not allow him/her appropriate Muslim burial practices?
1.8.2008 5:18pm
Clayton E. Cramer (mail) (www):

It is apparently your argument that today's military weapons were logically and inevitably anticipated by the founders and that therefore are included in the right to bear arms. All I am saying is this line of arguing is ridiculous and patently unfair on its face. Furthermore, the means to convey a right (the press or speech) is completely different than the right itself (bear arms). So comparing printing or communications technology to arms technology is inappropriate.
There are two arguments here:

1. DC claims that handguns are especially dangerous, and therefore can be subject to much stricter regulation than long guns. The evidence from the period indicates that:

a. Handguns were not regarded as especially dangerous.
b. Relative to long guns, and even relative to modern weapons, because of other technology changes, guns of all types are not many orders of magnitude more of a public safety issue than they were then.

2. The repeating firearm was not an unforseen concept in 1791. People were working on the technology, and there were some examples already in use.

3. If you want to argue that the technology of firearms has changed dramatically, and therefore modern weapons don't deserve the protection of the Second Amendment, the same is even more true of many other technologies that enjoy protections of the Bill of Rights.
1.8.2008 5:20pm
Clayton E. Cramer (mail) (www):


We weren't fighting enemies that were prepared to die to kill thousands of Americans in 1791. Perhaps that "cruel and unusual punishment" clause is obsolete, when confronting Islamic terrorists. Maybe, by your reasoning, the Court should hold that we need more effective deterrents than death--say, inflicting excruciating pain on a captured terrorist for years on end as a method of discouraging suicide bomber attacks.

Would it be considered 'cruel and unusual punishment' to desecrate the body of an Islamic terrorist with pig fat after he dies and not allow him/her appropriate Muslim burial practices?
That's an interesting question. It might qualify as "unusual" but since the person is already dead, it's hard to call it "cruel" except to his next of kin--who aren't being punished by our laws.

Of course, there's a guy who challenged Washington State's plan to hang him some years ago by claiming that because he weighed 340 pounds, his head would probably come off, and he claimed that violated the "cruel and unusual punishment" prohibited. I don't see how; by the time he lost his head, he would be feeling no pain. (This guy wasn't the sharpest crayon in the box; he went into a credit union to solve an overdraft problem, but by the time he left, he had killed everyone inside. And he left his checkbook on the counter, which made him rather easy to find.)
1.8.2008 5:24pm
Clayton E. Cramer (mail) (www):

You can do a LOT of damage with an old muzzle-loaded cannon; some powder, some nails, some broken glass.

Would YOU like to 'visit' the house, as a member of some SWAT team doing a No-Knock, on someone who had something like that?
And of course even back then, a cannon was used for defense of a fixed position--not as a personal self-defense weapon. The arms commonly carried were edged weapons and pistols. My impression is that those who were expecting trouble while out and about in some of the frontier towns carried two or four pistols, and a Bowie knife or Arkansas Toothpick. When the national news media decided to make a big media circus about these latter weapons in the late 1830s, after an unfortunate incident involving two members of the Arkansas House of Representatives who fought it out with Bowies on the floor of the state legislature, there were two predictable effects:

1. A number of states passed "assault knife" laws (which sometimes included concealable pistols).

2. Demand for Bowie knives and Arkansas Toothpicks went UP and drove up prices, incentivizing increased production.
1.8.2008 5:34pm
Clayton E. Cramer (mail) (www):

And yes, muzzle loading cannons are useless--are they regulated? I don't even know. I can't imagine why they would be or why anyone other than a reenactor would want a functioning one.
It probably depends on the state. I had a friend who would often be pulled over by the police when he drove through Oakland towing his 3" bore black powder cannon. They were more curious than concerned, but when they asked if he had a permit for it, he would just remind them, "It's black powder. I don't need a license for it in California." (Since then, black powder handguns have apparently been brought under the modern firearm rules.)

I can't imagine anyone but a reenactor wanting one. But it is rather comforting to me to know that if totalitarian sorts ended up in control of the U.S. government, that the revolution wouldn't be completely without artillery. Obsolete artillery? Sure. But capable of delivering devastating and accurate damage at 1000 yards--and my friend had a legal supplier of explosive cannonballs for it.

Would such a cannon be tactically useful? There's a lot to be said for the element of surprise, and it might well be like what happened when the last major power did a calvary charge in late 1941. I suspect that at least some of why it was effective is that the Japanese didn't quite believe what they saw when the U.S. Calvary came charging through their lines on horseback, blazing away with handguns, and then again when they turned and returned to our lines.
1.8.2008 5:45pm
BD:
[Quote] "Well-regulated" (a.k.a "properly functioning") would most definitely include being organized into companies (as well as into larger and smaller units.) [Endquote]

Thank you, K. Parker. I specified "regiments" as the basic fighting unit out of sloppiness. Of course there are larger and smaller units that constitute the entire army.

I don't think "well-regulated" means "properly functioning" so much as "properly organized and drilled." In other words, it describes not a mob but an organized army-in-waiting whose members are versed in the fundamentals of soldiering (i.e., how to march, how to shoot, whom to salute, etc.).

As for another poster's question about the historical usage of "well-regulated," check out Federalist No. 29. Hamilton refers to a well-regulated militia as one that has "[gone] through military exercises and evolutions" with enough frequency as to acquire "a tolerable expertness in military movements." (Note that Hamilton didn't think it was practical to expect the entire adult male population to spend enough time away from their civilian pursuits to meet this standard of a "well-regulated" militia. Nevertheless, the Second Amendment sets that as the goal, and of course conceives of widespread gun ownership as a necessary ingredient in reaching that goal.)
1.8.2008 5:47pm
Gullyborg (mail) (www):
I can load, aim, and fire a recurve bow and arrows a hell of a lot faster than I can load, aim, and fire a 1791 black powder flint lock rifle.

And the arrows are every bit as lethal.

And I can hit what I aim at out to 50 yards.

If you want to claim that the RKBA shouldn't be applied to "more modern" weapons capable of faster firing than what was the norm of 1791, should that include "less modern" bows?

How about cars? I can get going up to 100 mph and plow into a crosswalk and kill a lot of people in one pass. Should we ban the car?

Give me a couple 5 gallon gas cans and a Bic lighter, and I can torch a whole building, possibly killing everyone inside. Why not ban fire?

Ah, but here's the thing... MURDER is illegal. Whether it is by assault rifle, bow and arrow, automobile, arson, kitchen knife, rock, or bare hands. Is it really necessary to regulate every tool on the planet when people who murder are already breaking the law?
1.8.2008 6:01pm
Clayton E. Cramer (mail) (www):

Note that Hamilton didn't think it was practical to expect the entire adult male population to spend enough time away from their civilian pursuits to meet this standard of a "well-regulated" militia. Nevertheless, the Second Amendment sets that as the goal, and of course conceives of widespread gun ownership as a necessary ingredient in reaching that goal.
One of the points that my book Armed America: The Remarkable Story of How and Why Guns Became As American As Apple Pie makes is that the ideology dominant in the 1780s was in love with the idea of the general militia as the primary defense of the nation. Hamilton and others knew that the general militia was never going to be practiced to the skill level to take on regular troops in comparable numbers--not even close. But it didn't matter; the militia were hundreds of thousands of men, and they were everywhere in America. Anywhere that a foreign invader attacked us where we had enough people to suffer as a nation, we would by definition have enough militia to put up a fight--at least long enough to delay until regular troops arrived.

There was a lot of self-delusion about the strength and capacity of militias. There were several reasons for this, of which the most important was this: professional soldiers might not have the same interests as the masses, and the militia were the masses. There was widespread concern about what has turned out to be case in much of the world over the last seventy years, and that is that professional soldiers have a bad habit of deciding that they know better what the nation needs than the voters.

As long as the professional military was tiny (as ours was for decades), there was nothing to worry about. The general militia outnumbered the professional soldiers by an enormous margin, and there wasn't any significant difference between the small arms of the professionals and the general militia. (Professional soldiers were far more likely to have cannon, but ordinary Americans at least had light artillery pieces. Hence, Boston's 1786 ordinance prohibiting you from keeping your cannon, mortars, and several other classes of light artillery loaded.)

Now, in retrospect, the militia system never worked as well as everyone (and I mean everyone) wanted it to work. You could make the case that the first part of the Second Amendment, if it actually imposed anything on the national government, was something of a mistake. See Houston v. Moore (1820) for evidence that it caused no change in power relationships. But the absence of the first part doesn't in any way change the limitations of the second part of the Second Amendment, and even if it did, the Supreme Court doesn't have the authority to decide, "Whoops! Congress and the states that ratified the Second Amendment were stupid, and therefore we can throw away this idea of an armed populace today."
1.8.2008 6:04pm
Clayton E. Cramer (mail) (www):

Is it really necessary to regulate every tool on the planet when people who murder are already breaking the law?
It is if you are the DC government, and just can't bear the thought that maybe the core problem isn't the tools, but the fools.
1.8.2008 6:06pm
Tony Tutins (mail):

The term "bear arms" is used in both senses through this period.

To be sure. But if you leave out a discussion of "bear arms" in the draft amendment, you leave yourself open to attack, I think.
1.8.2008 6:11pm
Clayton E. Cramer (mail) (www):

To be sure. But if you leave out a discussion of "bear arms" in the draft amendment, you leave yourself open to attack, I think.
The objective is to demonstrate that the claim that "bear arms" is always military is incorrect. We aren't disputing that there are many uses that are military in nature.
1.8.2008 6:21pm
BD:
Clayton: I see you beat me to the punch in citing Federalist #29. Sorry I didn't see that before I posted.

I'm intrigued by your comment that the militia system didn't work as well as everyone hoped. I wonder, in what sense did it not work? Other than the War of 1812, which we of course won, was the militia system ever really put to the test? Obviously, it was not a system that could meet the national security needs of the modern age, but that doesnt mean it was a failure in its own day.
1.8.2008 7:18pm
Andy Freeman (mail):
>>The tight formation has another purpose, which is why the Romans used it.

> Yes, It was also a defense against cavlary charges.

It's a good defense against lots of other things as well.

> But this isn't a forum on 18th century battle tactics.

Thomas introduced 18th century battle tactics to support his argument. When it turns out that they don't support his argument, they become irrelevant. This isn't the first time that Thomas' supporting arguments have become irrelevant to his conclusion.

I wonder if we'll get to the point where the truth of Thomas' arguments is used to help determine the validity of his conclusions.
1.8.2008 7:20pm
Unix-Jedi (mail) (www):
Andy Freeman:

I also find it interesting, that on several 2nd Amendment threads, Thomas feels the need to postulate a duel situation. Insinuating, as he goes, that of course things work in a certain way.

Not that he's actually willing to try it, luckily for him, because every one (I particularly remember his challenge starting at 300 yards against a shotgun - which would have been a very short contest against anybody knowing what they were doing.)

Then as more and more people point out that his "sure thing" scenario is in reality, more likely to be a one-way-slaughter with him on the losing side, he insists that it's totally irrelevant to his point.

For all the hue and cry about "How much more dangerous guns are now", the claimants cannot seem to comprehend that at the time, any scratch could well cause death, much less a penetrating bullet wound. There were some survivors, not many.

This was the world of the "Founding Fathers" - one where a large number of their contemporaries had died due to "minor" injuries, and almost all had battle experience, and had seen results of firearms firsthand.

Nowadays, 80% of those shot by pistols survive. That was not the case then - when any shot was likely to be fatal.
1.8.2008 7:59pm
Swen Swenson (mail) (www):
I haven't been able to access your ssrn papers through the cranky wifi I've got here, so I apologize if you've adressed this:

What, in your opinion, would constitute an unconstitutional infringement of the right to keep and bear arms? Are there constitutionally acceptable infringements? Where should the line be drawn?

Second, is there any utility in gun laws that will only be obeyed by the law-abiding and can easily be circumvented by the criminally inclined? As an example, Miller banned sawed off shotguns, but that didn't stop the Columbine shooters from sawing off their shotguns. Likewise, it's generally illegal to carry a concealed weapon without a license, but this does not stop criminals from carrying concealed weapons.
1.8.2008 9:37pm
Tom in Ohio (mail):

Since your argument is that modern weapons are so far and above the weapons of 1791

Where did I make this argument? It is apparently your argument that today's military weapons were logically and inevitably anticipated by the founders and that therefore are included in the right to bear arms. All I am saying is this line of arguing is ridiculous and patently unfair on its face. Furthermore, the means to convey a right (the press or speech) is completely different than the right itself (bear arms). So comparing printing or communications technology to arms technology is inappropriate.



Well, even if they couldn't have been anticipated, why is it that none of these "surprise" developments were regulated until the twentieth century?



Obviously, it was not a system that could meet the national security needs of the modern age, but that doesn't mean it was a failure in its own day.


It works for countries that don't go sticking their noses into everything the world over.
1.8.2008 10:05pm
dew:
RE: some statements about cannons and muskets

By coincidence, I had dinner last night with the owner of a 3” replica colonial cannon (he owns a mortar too). His estimate is that with full safety, a cannon can be fired by a crew about every 15 seconds; cut out the safety (basically worming the bore once and wet swabbing it twice, as well as keeping the powder and linstock at a safe distance), and you could load and fire maybe every 10 seconds. An individual by himself would take a little longer. From his and my experience, loading and firing a cannon is pretty much the exact opposite of “incredibly difficult”. As for accuracy, I didn’t ask and have little experience, but cannon should not need to be aimed with great precision to hit a target using grapeshot or chainshot. YMMV.

A smoothbore musket can be repeatedly loaded and fired about every 20 seconds by someone with only modest training. During a competition I saw, one colonial reenactor was able to get 10 shots off in 2 minutes with a “Brown Bess” (no ball, though that should make minimal difference). I had the opportunity to live fire a musket a couple of times (using a replica French 1763 Charleville, not a Bess). I could easily hit paper-plate sized targets at maybe 20 yards, and I am far from any sort of a gun/shooting expert. More experienced folks have told me a good shooter can often hit a target at maybe 75 yards. Of course, at home you could also use buckshot; a musket is pretty similar to a shotgun. Whether that makes a musket useful or useless for self defense as was previously claimed is an exercise for the readen r.

Note that confusing smoothbore musket military accuracy and home/hunting accuracy is problematic; military musket balls were generally smaller than what a private individual would use. A platoon or company of troops would act as a big shotgun so individual accuracy wasn’t as big of a concern compared to what a hunter would want. Conversely, being able to fire many times without getting the musket ball stuck partway down the barrel due to the fouling (soot buildup) in the barrel was a big issue for troops, but less so for a hunter, who could clean the barrel every few shots. So an individual at home might typically use tighter fitting, more accurate ball, while the military would use musket balls too small for good accuracy.
1.9.2008 7:31am
Clayton E. Cramer (mail) (www):

I'm intrigued by your comment that the militia system didn't work as well as everyone hoped. I wonder, in what sense did it not work? Other than the War of 1812, which we of course won, was the militia system ever really put to the test? Obviously, it was not a system that could meet the national security needs of the modern age, but that doesnt mean it was a failure in its own day.
We didn't win the War of 1812; the cost of the war was so high (having D.C. burned to the ground) that we finally gave up. Militias worked well in New Orleans; not so effective in defending Washington, D.C., where many militia turned and ran when confronting British troops. Now, remember, here is the situation where the militia should have been highly effective: British troops are marching into one of the most densely populated parts of the United States, where our militia should have outnumbered them 1000:1. And yet, we couldn't stop the burning of D.C.

Militias turned out to be not so effective on the frontier, and that's part of why we had a standing army in the 1790s. Population densities were too low out on the frontier for militias to be regularly effective, especially because militiamen were easily distracted by the prospect that their homes were at risk by Indians not engaging in a frontal assault.

Another part of the problem is that militias, especially after the War of 1812, turn into social organizations in the North. This is partly because the threat of direct attack on the U.S. declines so dramatically. The militia system is preserved a good bit better in the South because it becomes part of the slave patrol system.
1.9.2008 9:42am
Clayton E. Cramer (mail) (www):

What, in your opinion, would constitute an unconstitutional infringement of the right to keep and bear arms? Are there constitutionally acceptable infringements? Where should the line be drawn?
The Framers wrote laws that discriminated not against the type of gun, but against the person holding it. Slaves were disarmed; much more rarely, those who were not trusted because of minor criminal actions might be prohibited from carrying weapons away from home; those who committed felonies were generally hung. Some states disarmed free blacks, although even in the South, you have curious examples like North Carolina that required free blacks to have a license to have a gun, but issued such permits quite freely.

Of course, the 13th Amendment abolished slavery, so there's no longer a basis for disarming slaves. The 14th Amendment scrapped laws that discriminate based on race, so free blacks (as long as they don't live in DC). We don't execute many felons anymore, but I see prohibitions of felons being in possession as constitutional. The alternative is to return to executing rapists, robbers, murderers, and burglars. Prohibiting them from having guns seems a lesser punishment, don't you agree?


Second, is there any utility in gun laws that will only be obeyed by the law-abiding and can easily be circumvented by the criminally inclined? As an example, Miller banned sawed off shotguns, but that didn't stop the Columbine shooters from sawing off their shotguns. Likewise, it's generally illegal to carry a concealed weapon without a license, but this does not stop criminals from carrying concealed weapons.
1. Laws don't have to work perfectly to be effective. All laws work at the margins. If making something unlawful causes some people to obey the law, it may be worthwhile.

2. You do have to be careful that such laws don't produce bad unintended effects. Thus, a law that discourages the carrying of weapons may get some criminals to stop carrying guns--but if it also discourages their victims from carrying guns--and especially if it disproportionately discourages their victims from being armed--that can be a very serious problem.

That's part of why I don't have a big problem with the concealed weapon permit system, as long as permits are readily and cheaply available to law-abiding adults. Requiring a permit will discourage those who can't lawfully obtain a permit from carrying a gun. It won't work perfectly, but it may discourage some. At the same time, it doesn't prevent the law-abiding from carrying a gun for self-defense.
1.9.2008 9:54am
Nomen Nescio (mail):
I had dinner last night with the owner of a 3” replica colonial cannon (he owns a mortar too). His estimate is that with full safety, a cannon can be fired by a crew about every 15 seconds


impressive. but how long before the barrel overheats, at that pace? i assume that "hot enough to set off black powder on contact" would count as "overheated".
1.9.2008 10:13am
dew:
impressive. but how long before the barrel overheats, at that pace? i assume that "hot enough to set off black powder on contact" would count as "overheated".

That’s a great question that I don’t know the answer to. He takes the cannon and mortar up to “Living History Association” events up in Vermont, where they have rapid firing demonstrations; that is where he got his estimates from. I would guess that they don’t fire more than a dozen times in a single demo though. Here, you are permitted to only fire a cannon once every minute (maybe every other minute), so when I have seen them fired they reload slowly and nothing gets very hot. I have felt a cannon tube after a single firing, and it does get warm, so it probably heats up pretty quickly with repeated firing.

I would guess that swabbing the bore twice with a wet swab between firing helps a little with heat (the main reason is to snuff any hot embers). Also, in the 18th century they often used (and seem to always use today) pre-measured cartridges of powder that are pricked through the touchhole after loading to expose some powder to the fuse. That is a bit safer than just dumping raw powder down a hot tube, so I would guess that the barrel will get very hot before spontaneous firing is a problem.
1.9.2008 10:53am
Carl in Chicago (mail):
I have found interesting some of the discussion surrounding "pacifists" and those "scrupulous of bearing arms." It's interesting how these positions may or may not affect the protections guaranteed by the 2A.

On that subject, I'd like to relate a few "every day" stories...but knowing they have little implication legally. But in as much as public perception indirectly plays into this issue, the story above is interesting.

First, I should say that I grew up in and among communities of Mennonites who were pacifists and conscientious objectors. Yet they hunted and kept guns for personal use...never for self defense or military applications, but for the hunting of game and the killing of pests.

Likewise, I attended a "gun show" last year in Nappanee, Indiana (not far south of South Bend and Elkhart). As we drove into the parking lot, I was interested to see about 20 or more Amish buggies, with horses hitched to them. When we went inside the building, we saw many Amish...browsing, buying, selling...men, women, children. All of the food booths were staffed by Amish women, and many men tended tables. I took the opportunity to respectfully ask three independent Amish men some questions: 1) Do you consider yourself a pacifist in the sense that you would not kill another human being? 2) Do you or many people in your community own guns? 3) For what purpose? 4) What about handguns? 5) What about guns like AK-47s or AR-15s? 6) Do you think you have a right to own guns?

Each of the men stated that they were morally obligated to non-resistance, even in the case of criminal attack. All three owned at least 1 firearm, and many in their community did as well. They owned them primarily for hunting of food, and secondarily for the taking of vermin and other pests. "The boys often spend what little free time they have hunting, or just shooting for fun." Invariably, handguns were "off limits" to them because they're viewed as a strictly defensive gun (against humans), which is inconsistent with their moral obligation to non-resistance. Likewise, AKs and the like were forbidden, because they are (or are viewed) as primarily military firearms and as such, inconsistent with their belief in non-resistance. Finally, all agreed that they had a right to own guns...one man said something to the effect that "how are guns any different than any other thing I can own, like a horse, or a hammer, or a hoe?"
1.9.2008 10:53am
J. F. Thomas (mail):
His estimate is that with full safety, a cannon can be fired by a crew about every 15 seconds; cut out the safety (basically worming the bore once and wet swabbing it twice, as well as keeping the powder and linstock at a safe distance), and you could load and fire maybe every 10 seconds.

I call bullshit. Its amazing how little some of these people know about the eras they are so obsessed with. There is no way gun crews could have gotten off a shot every fifteen seconds, let alone a single person (which btw consisted of 12 officers and men--although by the Napoleonic Wars gun crews had been reduced to five)


In the late 1770s it was said that a 24-pounder could fire 90 to 100 shots a day in summer, or 60 to 75 in winter. A 16 or 12 pounder would fire a little more, because they were easier served. The Encyclopædia Britannica mentions "some occasions where 200 shots have been fired from these pieces in the space of nine hours, and 138 in the space of five


You'll notice that even at the highest rate, that is a little over one shot every two minutes.
1.9.2008 10:55am
dew:
Its amazing how little some of these people know about the eras they are so obsessed with.

Well yes, isn't it amazing how little some people know about subjects they choose to pontificate about?

To respond:
(a) His cannon is a medium sized 6-pounder, not a big 12 to 24-pounder
(b) His experience is from years of actual use, not second- and third-hand or worse references, or made-up facts like those in prior comments.
(c) The amount a cannon can be fired over time almost certainly has far more to do with overheating (and cracking or worse) than with how fast a cannon can be actually loaded and fired, which really is fairly simple to do. As I stated previously, the safety details get slightly complicated and would add some seconds, but I suspect that they would be mostly irrelevant in the silly hypothetical above.

I have no idea how accurate the 1771 Britannica is on this subject, or how accurate or selective the Wikipedia paraphrasing is, but since the article you reference does not mention it, a brass or brass-lined tube is much more resistant to heat problems that a plain iron tube, and should easily be capable of firing much more frequently with safety. The smaller the cannon, the more likely it might be brass (I think 3-pounders were brass more often than not even back in the late 18th century), and most/all modern replicas I have seen are at least brass lined.
1.9.2008 12:06pm
markm (mail):
It wasn't just cannon that were privately owned, there were entire private war ships, often with over a dozen cannon. No one seems to have worried about them being used to shoot up the waterfront in an American port.
1.9.2008 12:58pm
Clayton E. Cramer (mail) (www):

It wasn't just cannon that were privately owned, there were entire private war ships, often with over a dozen cannon. No one seems to have worried about them being used to shoot up the waterfront in an American port.
I can think of several reasons why.

1. Why would you use a ship to shoot up a waterfront? A pirate might do so, but pirates were rather like criminals of today--unlikely to be deterred by weapons regulation.

2. You might have reason to be concerned about an insane person on a rampage--but the violently insane were usually locked up before they became murderers back then--not after.

3. The cost of a ship with cannon was substantial, and most crazy people were unlikely to have those kind of resources.

In any case, J.F. Thomas is focused on cannon here because:

1. A cannon isn't "arms" within the meaning of the word in 1791.

2. He's hoping that he scare people into thinking that the Second Amendment being found to protect an individual right will have gang members using modern artillery pieces for drive-bys.
1.9.2008 1:12pm
K Parker (mail):
J.F.,

Doing a google search doesn't turn up much useful information. Everyone refers to the Royal Navy's superior rate of fire during the sail era (e.g. during the Napoleonic Wars) but nobody wants to give hard numbers, or even guesses. I did find one reference that claims the British rate of fire was 3 or 4 times that of the French, and gives an estimated cycle time of no more than 35 seconds. (I have no idea who the author is, nor any estimate of his credibility.)

It occurs to me that some of what I remember on this subject might have come from Robert Massie's incomparable Dreadnaught, which has a long opening section about the finale of the sailing navy; I'll try to pull the book of the shelf later today and see if I can come up with anything.
1.9.2008 1:18pm
Waldensian (mail):

The Mustang has a useful range of about seven meters. You have to aim carefully, and recognize the limitations of such a tiny weapon. But since most defensive uses of a handgun take place at distances of less than seven meters...

You might want to try the Kel-Tec PF-9. Not a pleasant gun to shoot, but a lot more weapon than the Mustang, and surprisingly concealable. I really like mine. The trigger shoe is a must.
1.9.2008 7:22pm
Waldensian (mail):

Wait all you want.

Heh. Come on now, you know you're dying to criticize homosexuals, leftists, and leftist homosexuals.
1.9.2008 7:23pm
Clayton E. Cramer (mail) (www):

Come on now, you know you're dying to criticize homosexuals, leftists, and leftist homosexuals.
Actually, I would prefer not to do any of those things. I would much prefer to do astrophotography and build telescope accessories. Unfortunately, some people just aren't content with live and let live. They need the government to be running around telling other people who they must do business with, and that they aren't allowed to defend themselves from criminal attack.
1.9.2008 9:27pm
Clayton E. Cramer (mail) (www):

You might want to try the Kel-Tec PF-9. Not a pleasant gun to shoot, but a lot more weapon than the Mustang, and surprisingly concealable. I really like mine. The trigger shoe is a must.
A gun that is unpleasant to shoot tends not to get sufficient practice. You may have read the story of the inventor of Second Chance soft body armor. He was a pizza delivery guy in Detroit in the late 1960s. He regularly carried an NFA registered short-barreled pistol grip shotgun in the bottom pizza box, and a .22 Magnum revolver in his back pocket. (If that seems extreme, this was Detroit.)

As bad luck would have it, the day that he had the inspiration to invent soft body armor, he left the shotgun pizza box in the truck, when three young men attempted to rob him at gunpoint.

That .22 Magnum isn't much of a cartridge, but he had spent several weeks, and 1000 rounds of ammunition practicing with it. The guy on the left? Previous murder conviction. He was DOA.

The guy in the middle, with previous robbery convictions, got the next two shots. He was given a wheelchair for life.

The guy on the right had no previous convictions. The fifth shot him, the sixth shot missed. This guy had a short stay in the hospital, and we can hope learned his lesson.

The pizza delivery guy ended up with a very flesh wound, partly because he was so practiced with that revolver that he managed to get those shots fired so quickly.

Practice makes perfect. I would rather be well practiced with a handgun because I don't find it unpleasant to shoot. Let me introduce you to the opposite pole of this problem, my S&W 629 .44 Magnum (the grizzly bear discouragement device). Fortunately, if I ever have to use that, I will be aiming at a very large and easy target--the open jaws of a grizzly bear that has crossed 10 yards so fast that I can't miss that open mouth.
1.9.2008 10:58pm
K Parker (mail):
Alas, while Massie's chapter "From Sail to Steam" has a lot of wonderful information on the Royal Navy under sail (including some priceless anecdotes about Prince Alfred and the animals he allowed aboard), not one word about gunnery practice or rate of fire.
1.10.2008 12:10am
dew:
I spent a few minutes looking through the home library, and did not find much. One little book “Artillary through the ages” printed by the Nation Parks Service, stated that in the US Civil War, siege guns could be fired up to 20 shots an hour, but that included pulling the big gun (18 lb was the smallest listed, and the drawing shows 2 men ramming down the long tube) back from the wall, loading, then pushing it forward again. It also made a comment about early (16th-17th century cannons) requiring an hour rest every 40 shots due to heat.

The original 1771 Encyclopedia Britannica (I have one) articles are interesting; the Wikipedia article selectively (as the Gunnery article alone is over 9 pages) but accurately referenced parts of the articles. There is a paragraph on the manufacture; they mention Swedish leather cannons, which I thought was interesting. The only added useful bit is the last sentence in that paragraph, which agrees with what I said about iron/brass, “With regard to iron cannon, they are not capable of so much resilience as those of brass, but as they are less expensive, they are often used on board of ships, and also in several fortified places”.

In fact, many larger original field pieces I have seen are also iron, so the author may have based the article on ship and fixed placed cannons, or antiquated references. The article also has the chart from the Wikipedia article showing cannon sizes. Since it claims a 6 pound shot cannon would have a barrel 10 feet long, I am even more suspicious that the Britannica author was either using 16th-17th century references, or was basing his information only on big fixed guns. A 6 lb field gun in the 1770s would be maybe 4-5’ long - I am not exactly sure, as artillery is not something I have ever really researched, but I know I have never seen a 10’ long 18th century field cannon. I could see a 10’ long fixed cannon taking 1+ minutes to load. For that matter, I could see cannons on ships (from the comments above) taking a bit longer than a field piece, since you have to reposition the cannon before and after firing, and it seems the muzzle would be less accessible on a ship (so the 35 seconds to load on a ship may agree with my friend, I'll have to ask).
1.10.2008 10:00am