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An 1869 Data Point on the Second Amendment:

An Act to Protect the Owners of Firearms, from the Oregon Legislature in Jan. 26, 1869:

WHEREAS, The constitution of the United States, in article second of amendments to the constitution, declares that "the right of the people to keep and bear arms shall not be infringed;" and the constitution of the state of Oregon, in article first, section twenty-seven, declares that "the people shall have the right to bear arms for the defence of themselves and the state;" therefore;

§ 1. Every white male citizen of this state above the age of sixteen years, shall be entitled to have, hold, and keep, for his own use and defence, the following firearms, to wit: either or any one of the following named guns, and one revolving pistol: a rifle, shotgun (double or single barrel), yager, or musket; the same to be exempt from execution, in all cases, under the laws of Oregon.

§ 2. No officer, civil or military, or other person, shall take from or demand of the owner any firearms mentioned in this chapter, except where the services of the owner are also required to keep the peace or defend the state.

Naturally, this doesn't necessarily mean that exemption from execution -- which is to say exemption from seizure for payment of legal judgments -- was understood as a legally mandatory aspect of the state or federal constitutional right to bear arms; the statute was likely seen as building on the constitutional provisions, rather than implementing their literal command. But it does suggest that at least in late 1860s Oregon, the Second Amendment was seen as referring to an individual right to bear arms, including for purposes of one's "own use and defence," and covering revolvers as well as long guns.

By the way, the Oxford English Dictionary reports that a yager is a kind of rifle: "1848 H. W. HERBERT Field Sports U.S. II. 254 Throughout the South and South-West,..the yager, as it is called, or short-barrelled, large-bored piece, is universally preferred."

Blake M (mail) (www):
'Have' and 'keep' seem clear enough, but does 'hold' in this case mean roughly the same thing as 'carry' might today?
12.17.2008 2:15pm
Monty:
I like how the only way they can take a gun from you is if you refuse to use it to keep the peace and or defend the state... Now that is a common sense gun law...
12.17.2008 2:18pm
wfjag:
"yager" is also spelled "Jager" and "Jaeger."

From: http://dictionary.reference.com/browse/Jager

Jager
Ja"ger\, n. [G. j["a]ger a hunter, a sportsman. Cf. Yager.] [Written also jaeger.]
1. (Mil.) A sharpshooter. See Yager.
2. (Zo["o]l.) Any species of gull of the genus Stercorarius. Three species occur on the Atlantic coast. The jagers pursue other species of gulls and force them to disgorge their prey. The two middle tail feathers are usually decidedly longer than the rest. Called also boatswain, and marline-spike bird. The name is also applied to the skua, or Arctic gull (Megalestris skua).
Webster's Revised Unabridged Dictionary, © 1996

jaeger
ˈyeɪ gər;ˈdʒeɪ gər Show Spelled Pronunciation [yey-ger; for 1 also jey-ger] Show IPA Pronunciation
–noun
1. any of several rapacious seabirds of the family Stercorariidae that pursue weaker birds to make them drop their prey.
2. a hunter.
3. a member of any of several groups of sharpshooters in the German or Austrian army.
Also, jager, jäger, yager (for defs. 2, 3).

Origin:
1770–80; < G Jäger hunter, equiv. to jag(en) to hunt + -er -ER 1
Dictionary.com Unabridged (v 1.1)
Based on the Random House Unabridged Dictionary, © Random House, Inc. 2006.

As I recall, the "jager" were games-keepers for the German and Austrian nobility. They hunted with a carbine type rifle, and eventually military units were formed of Jagers who used their hunting rifles.
12.17.2008 2:23pm
Jim Rhoads (mail):
And of course, there is this most pleasant indulgence.

I seem to recall from my very rusty German that jaeger (the "e" is a the anglicized substitute for an umlaut over the "a") is the German word for hunter.
12.17.2008 2:41pm
GD:
"I like how the only way they can take a gun from you is if you refuse to use it to keep the peace and or defend the state... Now that is a common sense gun law..."

I took "except where the services of the owner are also required to keep the peace or defend the state" to mean that that both the owner (along with his/her gun) could be conscripted into service (a taking).
12.17.2008 2:59pm
Brett:
It's worth noting that "one revolving pistol: a rifle, shotgun (double or single barrel), yager, or musket" represented pretty much the state of the art in military infantry weaponry as of 1869.

So not only does this law suggest that the Second Amendment was seen as guaranteeing an individual right, it also suggests that it was seen as extending to the weapons in ordinary use among soldiers.
12.17.2008 3:06pm
Tony Tutins (mail):
According to The Pennsylvania-Kentucky Rifle, by Henry J. Kauffman, the European Jaeger rifle was the immediate ancestor to the Pennsylvania rifle. It got its name from its popularity with big game hunters in Central Europe, at the turn of the 18th Century. It had a relatively short barrel (30-60 inches) of octagonal shape, in a caliber between .60 and .75 inches.
12.17.2008 3:11pm
Tony Tutins (mail):
That debtors were allowed to keep one revolver and one long gun suggests that these were considered to be a necessity of life. I wonder what other property was beyond the reach of judgment.
12.17.2008 3:16pm
Tony Tutins (mail):
Eek: barrel between 30 and 40 inches.
12.17.2008 3:17pm
Finance lawyer (mail):
"ONE of the following named guns, and ONE revolving pistol: a rifle, shotgun (double or single barrel), yager, or musket".

A rather tepid endorsement of a right to arms.
12.17.2008 3:20pm
MarkField (mail):
To expand on FL's post, this strikes me as a gun control measure. It puts limits -- very substantial limits -- on the right to bear arms beyond those expressed in the Constitutional provisions. I don't think I'd cite this if I were litigating a RKBA case in Oregon.
12.17.2008 3:32pm
Gino:
"That debtors were allowed to keep one revolver and one long gun suggests that these were considered to be a necessity of life. I wonder what other property was beyond the reach of judgment."

You beat me to it. I also found it interesting that the guns were exempt from execution. This shows how integral to life guns were in that day, not unlike the homestead and head-of-household wages are today.
12.17.2008 3:33pm
ShelbyC:

A rather tepid endorsement of a right to arms.


This is NOT a prohibition of owning more than one gun, it is a protection of guns from siezures that would apply to other forms of property. i.e. to resolve debt.
12.17.2008 3:44pm
Andy Rozell (mail):
Section 42.002(a)(7) of the Texas Property Code permits an individual debtor to exempt from execution two firearms.

So I guess they're still necessities of life.
12.17.2008 3:50pm
James Gibson (mail):
First on Yager, as wfjag stated its a American corruption of Jager or Jaeger due to the fact in German "J" is pronounced as a "Y". He's also right in that its associated with hunters or hunting. Thus explaining why German Jagpanzers were hunting panzers (tank destroyers) and german paratroops are Fallschirmjager (falling hunters).

Jager also means light troops, which when applied to the arms they carried would tend to indicate a short carbine. Given a large number of German immigrants were in Oregon, its tends to reason they were referring to a light rifle or carbine used by hunters.

As to Tony's correction for barrel length from 30 to 40 inches (down from a high of 60!!!), by the early 1800s the jager had become a carbine of around 45 inches in length and having a 30 inch barrel. So again, we can interpret the reference in the Oregon law to a short carbine.

Personally, I like the laws distinction that owning a rifle or shotgun didn't prohibit you from also owning a revolver.
12.17.2008 3:52pm
James Gibson (mail):
On the subject of debt payment, it appears the law prohibited a person from being disarmed beyond one pistol and either a rifle or shotgun of his choice. I suspect that a similar attitude to that of stealing a man's horse could then be applied to someone taking a man's firearms if they took all of them leaving the man defenseless.
12.17.2008 4:01pm
J. Aldridge:
Note the tile says "An Act to Protect the Owners of Firearms" AND NOT "An Act to Protect the Right to Keep and Bear Arms."

Sorry, but this act has nothing remotely to do with the Second Amendment.
12.17.2008 4:06pm
J. Aldridge:
^^^ tile = title.
12.17.2008 4:07pm
ShelbyC:

Sorry, but this act has nothing remotely to do with the Second Amendment.




Uh, except that the first sentence of the act describes the second amendment as the reason for the act. Other that that, you're right.
12.17.2008 4:11pm
Syd Henderson (mail):
§ 1. Every white male citizen of this state above the age of sixteen years, shall be entitled to have, hold, and keep, for his own use and defence, the following firearms, to wit: either or any one of the following named guns, and one revolving pistol: a rifle, shotgun (double or single barrel), yager, or musket; the same to be exempt from execution, in all cases, under the laws of Oregon.

What about non-whites and non-males? The non-whites in this would more likely be Asians and American Indians than blacks, since this is Oregon.
12.17.2008 4:14pm
JoshL (mail):

What about non-whites and non-males? The non-whites in this would more likely be Asians and American Indians than blacks, since this is Oregon.


American Indians were not likely to be citizens in 1869, and the waves of Asian immigration on the West Coast didn't come until later in the 19th century.
12.17.2008 4:19pm
wfjag:
Dear James:

You forgot "Jagerschnitzel".

Personally, I preferred that with either a Smoked Beer or a Franken white wine. What were your preferences?
12.17.2008 4:20pm
Bama 1L:
Uh, except that the first sentence of the act describes the second amendment as the reason for the act.

Just like how the first part of the 2d Amendment describes the reason for the second part of the 2d Amendment?
12.17.2008 4:34pm
MarkField (mail):

American Indians were not likely to be citizens in 1869


Interestingly, neither the 2d A nor the OR provision limit the right to "citizens".

In 1869, at least some Indians would have been citizens because of the first clause of the 14th A. I don't know how this affected recognized tribal groups; someone who knows more can help me out here.
12.17.2008 4:38pm
J. Aldridge:
Wait a minute: This firearms exemption was already on Oregon books along with pictures, books, musical instruments, etc. This exemption was never connected to bearing arms.

Whoever drew up this 1869 act had no clue to what they were doing. Did it actually became law? If it did actually become law it would had duplicated an already existing exemption law which makes no sense.
12.17.2008 4:44pm
Philistine (mail):
A 2006 Montana Supreme Court Case, which was on a certified question from Bankruptcy Court, held that a statute stating,


(1) In addition to the property mentioned in 25-13-609(1), there shall be exempt to all judgment debtors the following property:
. . .
(b) all arms, uniforms, and accouterments required by law to be kept by any person and one gun to be selected by the debtor[.]


did not limit such exemption to a gun which is “necessary to carry out governmental functions,” because the heading of the statute was “Property necessary to carry out governmental functions.”

The Court stated the "one gun" exemption dated to 1895.
12.17.2008 4:49pm
Brett:
Just like how the first part of the 2d Amendment describes the reason for the second part of the 2d Amendment?


I long for the day when the hoplophobes, statists, and assorted other nitwits will cease to misapprehend a justification for a right as a substantive limitation on the right's scope.

I fear I may not live to see it.
12.17.2008 4:50pm
Philistine (mail):

In 1869, at least some Indians would have been citizens because of the first clause of the 14th A.


The Citizenship Clause of the 14th Amendment didn't apply to Indians. A statute was passed in the 1920's giving citizenship at birth to Indians, but there was a 1880's (or so) Supreme Court case saying Indians were not subject to the jurisdiction of the US, and thus, did not become citizens merely because of their birth in the US.
12.17.2008 4:55pm
R Gould-Saltman (mail):
Gino and Tony Tutins:

A number of states, on into the 20th Century, had lists of property presumptively exempt from execution, as "household necessities", which tended to include the debtor's clothes on his back, his stove, table and chairs, and if I recall correctly as to California, a rifle and shotgun, and (also working from memory from 33 years ago) one piano or organ in household use. (On such things do law students fritter away their time...) I also vaguely recall case law to the effect that items exempted by specific mention might still be subject to execution if a judge determined that the particular items were inconsistent with household personal use by a person of "that station in life", i.e., you couldn't put your cash beyond the reach of creditors by going out and buying shirts with solid gold buttons, or (the one I wanted to know about) by buying a (then-) $75,000 Bosendorfer grand piano (the one with the extra bottom octave). (Orin K. will tell you that Cecil Taylor had then recorded on one, so avant garde music fiends were aware of their availability).
12.17.2008 4:59pm
wfjag:

In 1869, at least some Indians would have been citizens because of the first clause of the 14th A.

In addition to the reasons Philistine states, check the debate on the 14th A reported in the Congressional Globe (predecessor to the Congressional Record). The drafters of the 14th A were very clear that it did not extend US citizenship to Indians, Chinese and other groups. It was meant to ensure that former slaves were not denied US citizenship.
12.17.2008 5:14pm
Eugene Volokh (www):
J. Aldridge: Please feel free to cite to and quote the earlier statutes that you describe; pointing to such supporting evidence, rather than just making assertions, tends to help the analysis. (For instance, it might help us figure out whether this law might have broadened whatever exemption might have already existed.)

But as to whether this ever became law, I'm pretty sure it did; I'm quoting from Deady's Oregon Organic and Other General Laws, ch. XII, sec. 1, p. 613 (1874), and it reports the law "took effect" on Jan. 26, 1869.
12.17.2008 5:17pm
randal (mail):
What is the theory of caring what people in the 1800's thought of things?

I can understand trying to see what people before and especially at enactment thought of things, but can you explain to me why I should weigh an interpretation from 100 years later any differently from an interpretation from 200 years later?
12.17.2008 5:33pm
Clayton E. Cramer (mail) (www):
Exempting firearms from civil execution isn't unknown in the Colonial period, either.
12.17.2008 5:49pm
robotslave (mail):
But it does suggest that at least in late 1860s Oregon, the Second Amendment was seen as referring to an individual right to bear arms, including for purposes of one's "own use and defence," and covering revolvers as well as long guns.



the statute mentions both the federal and state constitutional rights and the state constitution specifically provides for a right to bear arm in self-defense. so while this statute does suggest an individual rights reading of the 2d amendment it does not necessarily or very strongly suggest that the enacting oregon legislature believed that the 2d amendment to the us constitution included an individual right to bear arms in self defense. the "his own use and defence" language could easily have been incorporated into the statute on the strength of the oregon right alone. the oregon constitutional language makes provision for self defensive use of a firearm mandatory in a statute promulgated by the state government of oregon. the legislature may have but likely did not consider the protection from execution mandatory as well.
12.17.2008 5:59pm
loki13 (mail):

I long for the day when the hoplophobes, statists, and assorted other nitwits will cease to misapprehend a justification for a right as a substantive limitation on the right's scope.

I fear I may not live to see it.


I long for the day when people stop angrily accusing others of being nitwits and ignoring the words of the Constitution when it suits them, and then turning around and describing the sections they don't like as 'mere surplusage' or a 'misapprehend[ed] . . . justification' when it doesn't.

I fear I may not live to see it.


On a more serious note, while I can appreciate this bit of scholarly research, it doesn't do jack to inform us about the 2d (as pointed out in the OP). Beyond the usual (state courts can get things wrong), it isn't very compelling from an original expected application standpoint. This was many, many, many years after the 2d was passed. If someone told you that, say, a random state court decision from 1920 was how we currently view the First Amendment, it wouldn't carry much weight, would it?

I think the error many people make is that 1869 is really, really long ago. Ergo, the people of 1869 are, like, really old. The Founder were like, totally old! Therefore, the Founders and these people are, like, totally the same!

Somewhere, there's a diconnect.
12.17.2008 6:06pm
Eugene Volokh (www):
The Fourteenth Amendment, which is the key player in the incorporation debates, was drafted and ratified in the late 1860s. Attitudes about the right to bear arms during the 1860s may thus be relevant to the incorporation debates.
12.17.2008 6:49pm
MarkField (mail):
Thanks Philistine and wfjag.
12.17.2008 6:50pm
MarkField (mail):

The Fourteenth Amendment, which is the key player in the incorporation debates, was drafted and ratified in the late 1860s. Attitudes about the right to bear arms during the 1860s may thus be relevant to the incorporation debates.


Akhil Amar and others think so. So far as I know, though, the only factors the courts have considered have involved the status as of 1791. Am I wrong about that?
12.17.2008 6:52pm
Brett:
I long for the day when people stop angrily accusing others of being nitwits and ignoring the words of the Constitution when it suits them, and then turning around and describing the sections they don't like as 'mere surplusage' or a 'misapprehend[ed] . . . justification' when it doesn't.


I long for the day that loki13 will actually substantiate accusations of hypocrisy rather than ranting out his hind-end.

I fear I may not live to see it.
12.17.2008 6:52pm
frankcross (mail):
But doesn't it seem a little problematic to be using a "whereas" purpose clause in an Oregon statute as the basis for rejecting reliance on a similar clause in the 2nd Amendment?
12.17.2008 7:51pm
Bama 1L:
Thanks for getting it, loki13 and frankcross.
12.17.2008 8:02pm
ShelbyC:

But doesn't it seem a little problematic to be using a "whereas" purpose clause in an Oregon statute as the basis for rejecting reliance on a similar clause in the 2nd Amendment?


Nobody's rejecting anything. Maybe, since you bring it up, the statue limitation on execution doesn't really mean that firearms are exempt from execution, because the "whereas" clause limits the statute to protecting the second amendment, which allows execution. Good Point.
12.17.2008 8:07pm
Eugene Volokh (www):
Actually, the role of the "whereas" clause in the Oregon law is very similar to the role of the prefatory clause as Justice Scalia described it in Heller: It notes one reasons that the drafters enacted the provision, without negating the possibility of other reasons, or limiting the operative clause.

In fact, as I mentioned in my post, it's hard to imagine that the Second Amendment and the Oregon Constitution would mandate that firearms not be subject to seizure to discharge court judgments. Compliance with the constitutional provisions thus likely wasn't the only reasons why the law was enacted. There may well have been other concerns, too, such as a desire to protect hunters, or a desire to protect self-defense even against generally applicable execution orders that wouldn't normally be seen as unconstitutional violations of the right to keep and bear arms.

So the prefatory clause (as Heller pointed out) should be considered, and interpretations that read the prefatory clause and the operative clause as inconsistent -- for instance, that the Second Amendment is solely about protecting states against the federal government, and not about self-defense, even though the rest of the statute talks about self-defense -- should be avoided. But the prefatory clause shouldn't be seen as limiting the operative clause.
12.17.2008 8:11pm
loki13 (mail):
EV-

What MarkField, above, wrote. Prof. Amar has actually written in defense of the 2d Am. as an individual right when it is incorporated, but not as originally construed at the ratification (because the conception of a militia was vastly different than what we conceive of today). This would leave us in the anomalous situation where the the 2d Am. would be more binding on the states than on the Feds if we were true to original expected application, unless we were to perform so reverse incorporation jujitsu (like equal protection). Except it would be reverse-reverse incorporation.

I personally find the incorporation argument compelling (against the states), and think that the support for 2d Am. individual rights during reconstruction is already well-supported. Which is why this I am surprised that this post is considered news; is there something I am missing?
12.17.2008 8:14pm
Duffy Pratt (mail):
If you are going to use this as a guide for what the Second Amendment means, would you also use it as a guide for the meaning of the Equal Protection clause? Isn't it at least as likely that the Oregon legislature just got it wrong all the way?
12.17.2008 9:04pm
Brett:
But doesn't it seem a little problematic to be using a "whereas" purpose clause in an Oregon statute as the basis for rejecting reliance on a similar clause in the 2nd Amendment?


I'm not in favor of "rejecting reliance on a similar clause in the 2nd Amendment". So let's have a moment of silence for that poor straw man that you and loki13 and Bama 1L have so viciously beaten to death.

Rather, I'm in favor of reliance on that clause's actual original meaning, as opposed to the ridiculous, anti-textual, ahistorical interpretation first contemplated less than a century ago, and since properly rejected in Heller.
12.17.2008 9:11pm
Bama 1L:
Hi Brett. My quarrel was with ShelbyC identifying the constitutional provisions as "the reason" for the Oregon stature. I think we all agree that it's "a reason," just like maintaining a state militia provides "a reason" but not "the reason" for the right to keep and bear arms. I don't think anyone claims that the 2d Amendment requires such an exemption, but it certainly provides a good rationale for keeping this category of property, like the family Bible and the linens, out of creditors' hands.

I've been having some fun looking at state laws on exemptions from judgement execution. I'm only looking at statutes currently in force.

There is an across-the-board exemption for some minimal number of guns in 5 states: IA (1 shotgun + 1 rifle or musket), NV, OK (specifically not applicable to investment pieces), OR (as noted), and TX (two firearms).

Exemptions for weapons kept for service in the armed forces, militia, or as required by law can be found in 8 states: CO, CT, MA, MI, NV, NH, NY, and PA. The statutes in the northeastern states sure look like they date back to colonial times.

Guns are specifically mentioned as included in as a type of personal property that may be included in a limited "household goods" or other exemption by in MT, OH, WI. I think every state and the federal government allows such an exemption, so it's not clear to me whether the enumeration is important.

Many states also exempt tools of the trade and personal accoutrements, which I suppose could include some firearms. LA specifically lists "one firearm" as a possible implement necessary to the debtors' livelihood exempt for that reason. Again, I'm not sure of the significance.
12.17.2008 9:55pm
Clayton E. Cramer (mail) (www):

I personally find the incorporation argument compelling (against the states), and think that the support for 2d Am. individual rights during reconstruction is already well-supported. Which is why this I am surprised that this post is considered news; is there something I am missing?
Yes, a lot of people who having lost the battle over the meaning of the Second Amendment in 1791 (where I will agree there is only some evidence to support the individual rights view, and NONE to support the collective rights view), are now going to argue before the Supreme Court that in 1868, the Second Amendment wasn't reocgnized as an individual right, and therefore can't be incorporated through the 14th Amendment.

I'm working on a paper on this subject right now. There are at least a couple of examples of people in the 1860s who took the position that the 2nd Amendment did not protect an individual right--although vastly outnumbered by Southerners, Northerners, Unionists, Confederates, Copperheads, state supreme court decision, federal court decisions, newspaper articles, etc. that recognized that the 2nd Amendment protected an individual right. At most, the only real disagreements were:

1. Did the 2nd Amendment's individual rights protections limit only the federal government? Many believed that it did--but a respectable and legally knowledgeable minority believed that it limited the states as well.

2. Did the 2nd Amendment's protections protect the rights of black people?

3. Majority viewpoint seems to be open carry was protected, although concealed was not, some arguing this based on the idea that some method had to remain legal, some on the basis that concealed was an especially heinous way of carrying, because of the element of surprise prevented a "fair fight." A respectable minority viewpoint still considered concealed carry protected.
12.17.2008 10:14pm
Clayton E. Cramer (mail) (www):

What MarkField, above, wrote. Prof. Amar has actually written in defense of the 2d Am. as an individual right when it is incorporated, but not as originally construed at the ratification (because the conception of a militia was vastly different than what we conceive of today).
I'm not sure that Amar is actually arguing that there was no individual right protected in 1791. I get the impression that his argument is really that whether or not you buy the militia construct for the 2nd Amendment in 1791, it is very clear that in 1868, those arguing for the 14th Amendment could not possibly be using that militia construct meaning. Indeed, much of the Republican concern that leads to the 14th Amendment is to protect the right of individuals (freedmen and white Unionists) from the official militias of the Southern states.
12.17.2008 10:19pm
Clayton E. Cramer (mail) (www):

If you are going to use this as a guide for what the Second Amendment means, would you also use it as a guide for the meaning of the Equal Protection clause? Isn't it at least as likely that the Oregon legislature just got it wrong all the way?
This is one data point. It turns out that there are a lot of data points in this period. So far, I have seen perhaps half a dozen examples from the period 1791-1868 where someone argued or assumed that the 2nd Amendment did not protect an individual right. I have hundreds of examples of where an individual right was directly argued or assumed.

Maybe, just maybe, the overwhelming majority of written works arguing or assuming an individual right were actually a minority viewpoint, and "got it wrong." But I'm going to need some pretty persuasive evidence that this is reallly the case.

Or perhaps the NRA is just using their time machine to go back and make all these quotes show up.
12.17.2008 10:36pm
frankcross (mail):
I completely agree that the prefatory clause should rarely if ever limit the operational clause. But for the reason that prefatory clauses are typically throw ins, often for political reasons. I would bet that you wouldn't like statutes interpreted with much, if any, reliance on their purpose clauses. Of course, the typical problem is that such clauses could greatly expand the operational clause, rather than limiting it. I don't see a case for placing much weight on such clauses in any circumstances.
12.17.2008 10:45pm
James Lindgren (mail):
This notion that guns were not subject to distress for debts was present in some places in the colonial era and the early Republic.


While talking about the incompleteness of probate inventories, we mentioned this issue in passing in Counting Guns in Early America, 43 WILLIAM AND MARY LAW REVIEW 1777, 1782 (2002), available at SSRN:


One scholar, Anna Hawley, has suggested that guns might have been excluded from inventories by law as well as custom.9 She notes that because guns were required by law to be supplied by adult males as part of their militia service, in at least one state’s statutes (Virginia’s10), guns were not subject to distress or execution by law. Thus, guns might not have been required to be listed on probate inventories because they were not available to creditors in any event.11



FOOTNOTES:


9. She states:


Guns, on the other hand, were probably exempt by law rather than custom. . . . All free males from sixteen to sixty years of age w ere liable for militia duty and required by law to provide them selves with arms, powder, and shot. The act requiring this provision specified that the arms and ammunition were exempt from impressment, “distresse, seizure, attachment or exe cution.” Appraisers in Surry County may have selectively omitted the guns of poor men from their inventories so that their heirs could meet their civic responsibility. Anna L. Hawley, The Meaning of Absence: Household Inventories in Surry County, Virginia,
1690-1715, in EARLY AMERICAN PROBATE INVENTORIES, at 27-28 (Peter Benes ed., 1987). We do not know whether she is correct about appraisal practices.



10. 3 WALTER WILLIAM HENING, THE STATUTES AT LARGE, BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA 13-14, 335 -42 (1823).

11. Oddly, Bellesiles notes that guns were not subject to seizure by creditors, but claims that they were nonetheless required to be probated even though the protection of creditors was the main purpose of probate (along with title-clearing and informing legate es an d heirs ). BELLESILES, supra note 6, at 79-80. While it is possible that Bellesiles is correct, his contention is not supported by evidence in the book. [Here I am just being generous; Bellesiles is wrong.-JL]



Besides the VA statute, there may be one or two other late colonial or early Republic statutes on this, as well as a 1790-era VT statute for widows protecting guns from being turned over to creditors on the husband's death.

Jim Lindgren
12.17.2008 11:12pm
MarkField (mail):

In fact, as I mentioned in my post, it's hard to imagine that the Second Amendment and the Oregon Constitution would mandate that firearms not be subject to seizure to discharge court judgments. Compliance with the constitutional provisions thus likely wasn't the only reasons why the law was enacted.


This reasoning strikes me as problematic for an honest textualist. Of course, it's not like Horton the Elephant sits on the current Court.


This would leave us in the anomalous situation where the the 2d Am. would be more binding on the states than on the Feds if we were true to original expected application, unless we were to perform so reverse incorporation jujitsu (like equal protection). Except it would be reverse-reverse incorporation.


Treating the clause that way has good precedent in the EPC (Bolling v. Sharpe).
12.17.2008 11:31pm
James Lindgren (mail):
To simplify the logic, the 2d amendment in essence says:

To facilitate a narrow, but important purpose, we give a broad right to the people.

The logic of the Texas statute is different:

Given a broad constitutional right, we recognize a particular narrow right.
12.17.2008 11:43pm
MarkField (mail):
Texas? Do you mean Oregon?
12.18.2008 12:19am
James Gibson (mail):
One of the reasons why I read this blog is the interesting exchange of information that comes through. For example.

wfjag: Never tried Jaegerschnitzel actually, but I can get you a recipe for Jager Eintopf (hunters stew).

Second, its interesting that almost a decade after Mr. Bellisiles assertion that the probate records showed the true extent of gun ownership in America, we now have reason to consider that any gun owned by the deceased may not have been listed because it may not have been legal to sell them for payment of debt.

Like Mr. Bellisiles assertion that the 1803 Militia Return is a complete national gun survey instead of being an addendum to the December 1802 Militia Return we have another new hole in this story line. Unfortunately, no matter how many arguments and documents are found to dispute the no guns in colonial America story, the Bellisiles Faction hasn't given up on this revisionist fiction.
12.18.2008 2:48am
BZ (mail):
On "datapoints:"

Over the weekend, I visited the Huntington Library in San Marino, California, accompanied by my father, a well-published (but retired) scholar of early American history and literature. Unlike so many others, he works with the actual, original documents. (The Huntington, by the way, is a fabulous, and often overlooked, treasure trove of ancient documents, now headed by my former senior thesis advisor, Stephen Koblik.)

He showed me the original copy of the Bill of Rights reviewed and adopted by Rhode Island. The language of the various amendments, including the First and Second, was DIFFERENT from that eventually adopted. Apparently, this was not unusual amongst the new States, and led to the final versions being reconciled before being incorporated into the Bill of Rights. If I knew this before, I had forgotten it, but it brings up the question of whether there is fresh data to be mined from the various pre-reconciliation versions.
12.18.2008 8:38am
Clayton E. Cramer (mail) (www):

Second, its interesting that almost a decade after Mr. Bellisiles assertion that the probate records showed the true extent of gun ownership in America, we now have reason to consider that any gun owned by the deceased may not have been listed because it may not have been legal to sell them for payment of debt.
I'm not sure that I quite buy that, mostly because probate inventories DO show large numbers of guns--usually about 2/3 of the probate inventory collections that I have examined have at least one gun in them. Bellesiles' claim that probate inventories "showed the true extent of gun ownership in America" was, within the limits of what probate inventories showed, correct. Bellesiles just lied about the number of guns in them.
12.18.2008 9:42am
mainfloorguy:
As to the lapse of time between the ratification of the Bill or Rights and the 1869 Act, the point made in some comments is well-taken. The Second Amendment, though important, is not the only source of rights upon which the 1869 Oregon legislature relied. They also relied on their state constitution.

Oregon held its state constitutional convention in 1857, and the voters ratified it the same year. True, that is 12 years before the enactment of the statute that Prof. Volokh has quoted. The legislators, however, were "closer in time" to the constitutional convention. Arguably, they had a better understanding of the intent of the framers as to the fundamental right under the state constitution to bear arms.

http://arcweb.sos.state.or.us/exhibits/1857/intro.htm
12.19.2008 12:40pm

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