Another Early 1800s Source Supporting the Individual Rights View of the Second Amendment:

From H.P. Nugent, An Account of the Proceedings had in the Superior Court of the Territory of Orleans, against Thierry & Nugent for Libels and Contempt of Court 43-44 (Philadelphia 1810), relating statements by Judge Fran├žois Xavier Martin, then a territorial judge and eventually a Chief Justice of the Louisiana Supreme Court:

It is true, said he [Judge Martin], the constitution secures the liberty of the press, but it likewise secures the liberty of keeping arms; now, as the liberty of keeping arms is not the liberty of killing or maiming whom we please, so is not the liberty of the press, the liberty of publishing libels....

It was for the second time during the trial, that judge Martin compared the liberty of the press to the right of keeping arms, and argued that as one was not the liberty of killing or maiming, neither was the other that of publishing libels.

The Louisiana Supreme Court went on in the 1850s -- after Judge Martin was dead -- to likewise characterize the Second Amendment as an individual right, but it looks like this view was taken by a leading Louisiana judge as early as 1810. The reference is in passing, but it just reflects, it seems to me, the uncontroversial nature of the assertion at the time; and though it's second-hand (Judge Martin's words are paraphrased, not quoted), the tangential nature of the assertion adds credibility to it, since the author had little reason to misreport it.

I haven't seen this mentioned anywhere else, so I thought I'd post it. If any of you know of a source that talks about it, please let me know so I can give it proper credit. I know of no relationship between H.P. Nugent and Ted Nugent.


An 1830 Source Casually Assuming the Individual Rights View of the Second Amendment:

For an analysis similar to what I quoted below -- down to the analogy between the limits on the right to bear arms and the limits on the freedom of the press, see the argument of Ichabod Bartlett (a leading New Hampshire lawyer, Congressman, and speaker of the New Hampshire House of Representative) in Upham v. Hill (1830):

What is liberty of person? — liberty of speech? Are we not free? But have we a right to knock down and trample upon all whom we may dislike? ... We have too the right of bearing arms. And if we are not permitted to throw a brand into our neighbor's dwelling — or discharge our rifle upon the passers by in the street — we could as well complain of being enslaved — as to say the press is shackled, because it may not, by falsehood, assault the character of any and every citizen, when and where its conductors may choose.

This clearly assumes the right to bear arms as an individual right to possess or carry a gun (it's not clear which). This is weaker evidence than the views of Judge Martin, because it's only a lawyer's argument to a jury. But a skilled lawyer such as Bartlett would make such an argument (especially given the easy availability of other analogies) only if he thought the right to bear arms would be uncontroversially seen as an individual right by the jurors.

Note also that this had to be a reference to the Second Amendment or to some national consensus about the right to bear arms, and not to a state constitutional provision: New Hampshire had no right to bear arms provision in its state constitution until 1982.


An 1831 Source Supporting the Individual Rights View of the Second Amendment:

I should stress that this is a small thing compared to the very solid body of evidence that's already been uncovered in this direction. Still, I came across it, and thought I'd mention it. This is from Judge John Reed's Pennsylvania Blackstone (1831), "A Modification of the Commentaries of Sir William Blackstone, with numerous alterations and additions, designed to present an elementary exposition of the entire Law of Pennsylvania." Reed was the President Judge of the Court of Common Pleas of the Ninth Judicial District of Pennsylvania, and the founder of the oldest law school in Pennsylvania, the Dickinson School of Law. Here is his elaboration of the passage in Blackstone that discusses the English right to have arms:

5. A fifth right of every citizen, "is that of having arms for his defence." By the constitution of the United States, "the right of the people to keep and bear arms, shall not be infringed;" and by that of Pennsylvania, "the right of citizens to bear arms in defence of themselves and the state, shall not be questioned." These provisions also, were no doubt intended, to avoid a recurrence of the restrictions, on this subject, found in the English laws. By the forest and game laws, in England, the right of keeping arms is effectually taken away from the great body of the people; and, in another place in the Commentaries, it is said, "that the prevention of popular insurrections, and resist[ance] to government, by disarming the bulk of the people, is a reason oftener meant, than avowed, by the makers of such laws.

So Judge Reed is clearly treating the Second Amendment as (1) being based on the English right to have arms (something that Justice Stevens' Heller dissent largely denies), (2) being similar in scope to the Pennsylvania right to bear arms in defence of themselves as well as of the state (again something that Justice Steven's dissent seems to deny), and (3) not being dependent on membership in a government-defined militia (since the right is "of every citizen," and is a "right of keeping arms" that the government may not "take[] away from the great body of the people").


Two More Early References to the Right To Bear Arms,

in 1816 arguments to a jury. The first is by defense lawyer Joseph Reed Ingersoll, who would eventually become a prominent Congressman:

I think it is apparent ... [t]hat after the attack, and threats, and the avowal of an intention of the part of captain Carson to take away his life, he had a right to bear arms on the plainest principles of self-defence....

Having the right of access to the house, he was justifiable in protecting himself by the only means which reduce the powerful to a level with the weak. The constitutions, both of the Federal government and of the commonwealth of Pennsylvania, secure to every citizen, the right to bear arms, and the only question that remains, is whether the exercise of the right be compatible with disretion.

The second is by another defense lawyer, William Rawle, a prominent early American lawyer who would nine years later write a treatise that likewise supported the individual rights view of the right to bear arms and of the Second Amendment:

There is only one circumstance remaining worthy of notice; that of arming himself. The constitution of this state has expressly secured the right to carry arms. In Art. IX, Sect. XXI, "the right of the citizens to bear arms, in defence of themselves and the state, shall not be questioned."

The right, in defence of the state is, where foreign invasion occasions it to be in danger; that of defence of themselves continues through their lives, and, therefore, there is not any thing in opposition to Richard Smith's bearing arms, not against the officers of the law, but against the lawless attack of an individual he had to fear. If, in a conversation with another, attacked by him, he had caught up and fired that pistol, in fear of his person suffering great bodily harm, the law would have considered it as excusable homicide. Does his carrying that pistol, after Carson's previous attempt on him, for self defence, make him culpable? No -- the constitution allows it, especially when the assistance of the magistrates could not be obtained; it follows, that the use of this pistol was not unlawful when accompanied with these circumstances. Suppose he had been taken up for carrying a pistol in his bosom, and upon complaint being made to some of the learned magistrates, he had defended himself, by saying, he carried it in fear of his life; or were to say even, I do not carry it -- it is in my chamber -- the judge would answer, pursue, uniformly, the same conduct; you are perfectly justifiable, and have a right to be armed in your own defence.

Trials of Richard Smith Together with the Arguments of Counsel, the Charges and Sentence of the President 157, 205 (1816).

These are small pieces of evidence, but I ran across them and thought I'd note them, especially since they are from only 25 years after the Bill of Rights was ratified, and since the second is one of the few sources that discusses the "in defence of themselves and the state" locution that's common in state constitutions. And the quotes help support, I think, the view that the Second Amendment was widely understood as securing an individual right to bear arms, including in self-defense, to the point that lawyers could confidently and casually assert this even in cases where they didn't have that much to gain from it: If Ingersoll wasn't sure that his audience would agree that the Second Amendment secured such a right, he could easily have just relied on the state constitutional right, which was the one most directly relevant in this state prosecution.

An interesting tidbit: The prosecutors were Jared Ingersoll -- defense lawyer Joseph Ingersoll's father -- and one Edward Ingersoll, who I take it was also related, though I'm not sure exactly how.


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."