Where’s Lexington and Concord in D.C. v. Heller?

Minute_Man_tn.JPGMike O’Shea has thoughts on tomorrow’s argument in D.C. v. Heller below; here are my own. Despite my recent posts on original understanding, I recognize that it’s often the most important interpretive method actually used by courts in constitutional cases; and even non-originalists like me might fall back on the original understanding for a clause like the Second Amendment where there’s nothing else to go on.

So I’m therefore a little puzzled by the way the D.C. v. Heller briefs downplay what the Framers would have regarded as the paradigmatic case of the confiscation of arms by the government: the Battles of Lexington and Concord, the events that started the Revolutionary War. It’s a bit as if briefs on a 1950s statute protecting ports from surprise attacks made only a passing mention of Pearl Harbor.

Briefly, by 1775 the conflict between Britain and Massachusetts was coming to a head. Parliament passed increasingly restrictive acts, and transferred British troops from Nova Scotia to Boston to enforce them, but they had little impact outside of the confines of Boston itself. In 1775, the Massachusetts legislature was meeting in Concord, and had built up a store of arms there to arm colonial militia. General Gage in Boston, under orders from London to do something, sent an expedition to Concord to round up the leaders of the legislature — people such as Samuel Adams and John Hancock — and confiscate or destroy the hidden caches of arms. Starting at Lexington, local militias assembled to block the troops’ progress, shots were fired, and the war began. In Concord, the British regulars searching the town did in fact destroy cannon and supplies and threw shot into the river.

Surely this story of national government troops being sent to confiscate arms held by people now recognized as heroes would have been prominent in the minds of those proposing that “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” (Indeed, the whole tale of 1770s Massachusetts probably inspired the Third and Fourth Amendments as well.)

The Heller brief focuses the most on this story, detailing the history of pre-war Massachusetts, and noting that the Revolution began with the raid on Lexington and Concord. But what I’ve described as the “paradigmatic case” of arms confiscation is a little muted. Lexington and Concord in the Heller brief stand, not as the evil that is itself to be prevented by the Second Amendment, but as the occasion for various Framers to indicate their displeasure at the gun confiscation that resulted afterwards in Boston under General Gage:

Americans reacted strongly to the disarmament of Boston. Thomas Jefferson and John Dickinson drafted a “Declaration of the Causes and Necessity of Taking Up Arms,” issued by the Second Continental Congress on July 6, 1775. Gage’s disarmament scheme figured prominently among the “Causes” for armed revolt [listed in the Declaration].

It seems an odd way to characterize the importance of “the shot heard round the world.”

I think the reason for this treatment in the Heller brief is clear: Lexington and Concord are a bit awkward for Heller’s argument. For one thing, they don’t fit well with the “individual rights” theory of Heller’s brief, since Lexington and Concord are stories about colonial militias, albeit informally organized ones. But perhaps more importantly, if the lesson learned from Lexington and Concord is that individual citizens can keep arms to resist federal troops, that’s too anachronistic even for originalists. After all, what was going on in Concord was not just gun ownership, but the collection of a large cache of arms by (from the British point of view) a large conspiracy against the national government. The colonists even had cannon, the most powerful weapons of the day. Saying the Second Amendment protects that is going a bit too far for comfort:

Respondent does not suggest that members of private paramilitary organizations have a right to commit violent acts under the auspices of acting as a citizen militia. The Framers, who organized the militia under the new constitution, doubtless agreed that citizens should not compete with legitimate government authority.

I’m not so doubtless. If Lexington and Concord were the paradigm case, then what at least some Framers had in mind was exactly that citizens should have the power to compete with legitimate (federal) government authority, just as they had in 1775. Indeed, that seems to be the point behind Madison’s reassurance in Federalist No. 46 that the militia would be able to easily oppose federal troops should the national government become despotic.

I’m a little surprised, however, by the almost total absence of Lexington and Concord from the D.C. briefs, particularly the amici historians’ brief. Perhaps they concluded that if Lexington and Concord were admitted to be the paradigmatic case, then D.C. loses, but I’m not sure that follows. In any event, the D.C. brief fails to mention the battles at all. Historians Jack Rakove, Saul Cornell, et al. spend much of their brief talking about the debate over control of the militias in 1788-89; the Second Amendment, they say, was part of that discussion:

It is equally unsurprising that the militia remained an object of constitutional concern in 1776. The American revolutionaries were conscious heirs of a radical Whig tradition that regarded standing armies as a bane to liberty, and which celebrated the idea of a citizens militia as the optimal form of military organization for a

republic. See generally “No Standing Armies!” The Antiarmy Ideology in Seventeenth-century England (1974). This was a staple theme of eighteenth-century political writing, and its lessons were reinforced when Britain sent its standing army to Boston, first to enforce

the Townshend duties (1768-1770) and then to compel obedience to the Coercive Acts of 1774.

Oh, and by the way, that reminds us:

The latter led to the outbreak of civil war in April 1775, when the militia organized by the Massachusetts Provincial Congress resisted the British march on Concord.

It’s possible that I’m overestimating the importance of Lexington and Concord — that I’m reading into it a significance seen in 1837 (the time of Emerson’s poem) but not in 1789. Or, it’s possible that the cause of the battles was foggy even in 1789 — people remembered that a battle occurred, but not why. That would explain why the historians passed over it. (Or perhaps it’s because actual historical events aren’t studied much any more by historians.) But if the arms confiscation history of the battles was in fact salient in the minds of the Framers, then it has to be addressed. And I think Rakove, Cornell, et al. could have made it into a strong point that the Second Amendment is all about militia protection, not urban crime prevention. But they didn’t, so Heller has really the only word on the subject.

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3 Responses

  1. Tim McDonald says:

    It is only a problem if you fail to recognize “militia” as exactly what you described, informal associations of every able bodied man with a gun between 14 and 65.

    That is the militia that the Constitutiion protects, and that the founders expected to protect us from the danger of tyranny.

    And that is in my opinion all the justification we need to expand the 2nd amendment to include allowing the majority of citizens to own any man portable arms they can afford.

  2. Charles Norris says:

    If D.C v Heller appears as a contradiction to Lexington and Concord it is because, in reality, it is a classic paradox. It stands as the perfect example of concepts inspired by the events at Lexington and Concord being perverted by the mis-guided attempts of local legislatures to curb urban crime by infringing on the natural and national right as mentioned in the 2nd. Amendment. The City of D.C.’s gun laws have done nothing to quell urban crime and made it all but impossible for the D.C. Council to “call forth its militia” (if it had or needed one). To answer the call with a well regulated weapon would be self-incrimination and violate the militia’s volunteers 5th. Amendment rights when he “mustered”. The cart now goes before the horse.

    Re: “The colonists even had cannon, the most powerful weapons of the day.”

    Respectfully, I beg to differ. The armed sailing ship, the proverbial “Man of War”, was the nuclear weapon of the 17th and 18th. Centuries. So important that the Founding Fathers did not allow Congress a choice regarding a navy but compelled it to; “Provide and Maintain a Navy”, Ar.1,Sec.8, Para 13. I don’t advocate that “cannon” is a protected arm under the 2nd. Amendment as it is a “crew served weapon”, but the Founding Fathers did not, regard the muzzle loading cannon of the day as being beyond private possession as long as the possessor behaved. “Privateers”, privately owned armed ships were, all together, a different matter.

  3. Trying to base an understanding of the Second Amendment’s intent from one specific historical occurrence results in exactly the type of disagreement that the Supreme Court is attempting to settle in the Heller case.

    Rather than use the beginning of hostilities for an understanding of why arms are guaranteed to the people, why not look at why people had arms to use prior to the beginning of those hostilities? If the people had not possessed arms and knowledge of their use prior to Lexington and Concord, the shot heard ’round the world could not have been fired. Also, it should be obvious that government officials in most of the colonies were not enforcing any of the existing militia laws requiring men to possess and train with their own arms. There were, in fact, extensive attempts to disarm the people and make any arms they had useless by seizing all gunpowder well prior to hostilites. This was especially true in Massachusetts, but also in other colonies, most notably Virginia.

    By emphasizing Lexington and Concrod, the person most responsible for the Second Amendment, George Mason of Virginia, is completely ignored. Mason was organizing a defensive association of all the able-bodied men in Fairfax Countty over a year prior to hostilities up in Massachusetts. He described this defensive force as a well regulated militia. It was Mason who wrote the 1776 Virginia Bill of Rights, America’s first, and the first of several to use his well regulated militia reference. It was also Mason who wrote the first two-clause predecessor of the Second Amendment as part of a model Bill of Rights that became the foundation for the first eight amendments of the U.S. Bill of Rights.

    The problem with understanding the Second Amendment is that those arguing about its intent often know little about the most relevant persons, comments, and actions that resulted in its actual formation. They get diverted into discussions of military matters rather than paying attention to the Bill of Rights context and history of the Second Amendment. I have attempted to solve this problem by documenting the Constitutional Era in The Origin of the Second Amendment and by preparing the first book length defintive history of the Second Amendment in The Founders’ View of the Rights to Bear Arms.

    My critical commenties on the historical arguments presented in four of the Heller amicus briefs supporting Washington DC’s gun control laws are available online. They expose a remarkable lack of understanding of our Bill of Rights history in four of the Heller briefs by those trying to influence the Supreme Court, one of which was submitted by a large number of professional historians and constitutional law academics.

    For links to these articles and information about the historically based Second Amendment related books mentioned above, go to this URL: