This article argues that the debate around the meaning of the Second Amendment has lacked important historical context. Specifically, it notes that the debate in Scotland around having local militias, despite opposition from the British Parliament, helped inform the American debate around state militias. The article seeks to provide this missing transatlantic context in order to better understand the historical meaning of the right to bear arms as it was understood in the late 18th century on both sides of the Atlantic. It does not take a position on the modern interpretation of the Second Amendment but aims to reconstruct the political and legal thinking of the time period to inform the originalist debate.

1. American Society for Legal History
The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of "The
Right of the People to Keep and Bear Arms"
Author(s): David Thomas Konig
Source: Law and History Review, Vol. 22, No. 1 (Spring, 2004), pp. 119-159
Published by: University of Illinois Press for the American Society for Legal History
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2. FORUM: RECONSIDERING THE SECOND AMENDMENT
The Second Amendment:A Missing
Context for the Historical
Transatlantic
Meaning of "theRight of the People to
Keep and Bear Arms"
DAVID THOMAS KONIG
The presentessay seeks to work at the intersectionof law and history,a
meeting point where interpretation the Second Amendmenthas been
of
more characterized collision thanconfluence.Analysis broughtto bear
by
on the historicalmeaningof "therightof the peopleto keep andbeararms"'
has coalescedaroundtwo competingnormative interpretations: eitherthat
the amendment guarantees a personal,individual rightto beararms,or that
it appliesonly collectivelyto the effectivenessof the militia.It is a premise
of this essay thatboththesemodelsarehistorically the
unsatisfactory, prod-
ucts of present-day normativeagendasthathave polarizedthe debateinto
two competingandlargelyahistoricalmodels-a type of historians' falla-
cy thatDavidHackett Fischerhas labeledthe "fallacyof false dichotomous
questions."Fischer's descriptionaptly describesthe currentcontroversy
over the historicalmeaningof the SecondAmendment: additionto be-
in
ing "grossly anachronistic," two opposingpositions "aremutuallyex-
its
clusive, and collectively exhaustive, so that the there is no overlap, no
openingin the middle,andnothingis omittedat eitherend."2 is not with-
It
1. "A well regulatedmilitia,being necessaryto the securityof a free state, the right of
the peopleto keepandbeararms,shallnotbe infringed" (U.S. Constitution,amend.2; ratified
December 1791).
15,
2. David Hackett Fischer, Historians' Fallacies: Toward a Logic of Historical Thought
(NewYork: &
Harper Row,1970),9-12.
DavidThomasKonigis a professorin the department historyand professorin
of
the school of law atWashingtonUniversity St. Louis.He wouldlike to acknowl-
in
edge the contributions Stuart
of Banner,BarryCushman, Don Higginbotham, Dan
Hulsebosch,Stan Krauss,Jack Rakove,Ted Ruger,RichardSher, the late Row-
land Berthoff,and the four anonymouspeer reviewersof this journal.
Law and History Review Spring 2004, Vol. 22, No. 1
? 2004 by the Board of Trustees of the University of Illinois

3. 120 Law and History Review, Spring 2004
out challenge on just these grounds, however, as a recent call for a "new
more sophisticated paradigm"3attests. This essay seeks to provide that new
model and to do so by grounding the "right of the people to keep and bear
arms" in eighteenth-century concepts of rights, not those of the twenty-first
century, and to contextualize the right to bear arms in an eighteenth-cen-
tury political struggle now largely ignored but well known to constitutional
polemicists framing the Constitution and the Bill of Rights: Parliament's
rebuilding of an English militia while denying the Scots the right to do so,
despite Scotland's history and its claimed constitutional rights according
to its coequal status in Great Britain. That struggle nevertheless remains a
missing context that prefigured American debates over constituting and
guaranteeing local militias in the coequal states of the federal union estab-
lished by the United States Constitution in 1787 and 1788. Once the time
came for seeking a written guarantee of local militia effectiveness in the
federal Constitution, the language and substance of this transatlanticlega-
cy had great influence. As experience, they gave political urgency to the
drafting and ratification of the Second Amendment; as a theory of rights,
they embodied an eighteenth-centuryindividual right exercised collectively.
It is no accident that the Second Amendment begins with a preamblethat
resonates with the preamble to the Militia Act sought by the Scots, for the
framers of the Amendment were responding to a similar political and con-
stitutional crisis. In the shared political culture of provincial Britons on both
sides of the Atlantic, proponents of organized local militia expressed con-
cerns about the past, present, and future effectiveness of a citizen militia.
In common, distrust of a central government that denied localities the right
to arm and organize their own militia units aroused fears that they would
be unable to resist oppression from the center, invasion from abroad, or
insurrection from within. The protection being sought, this shared transat-
lantic discourse reveals to us, lay in the maintenance of well-regulated
militias consisting of able-bodied men bearing their own arms for that
purpose. Indeed, to serve in the militia and participate in this civic duty
was more than a duty: it was a civic right of a peculiarly eighteenth-cen-
tury nature unlike either the "individual"or "collective" models argued for
today. On neither side of the Atlantic, that is, did the debate concern itself
with this right in the present-day sense of an "individual" or personal con-
stitutional right; but at the same time, its common emphasis on widespread
individual arms-bearing for public service distinguishes it from today's
narrowly applied "collective" application to the National Guard. No indi-
vidual right existed unrelated to service in a well-regulated militia; no ef-
3. Saul Cornell, "'Don't Know Much About History': The CurrentCrisis in Second
Amendment Scholarship," Law Review29 (2002): 657.
NorthernKentucky

4. The Second Amendment: Missing TransatlanticContext
A 121
fective militia could serve its purpose without an armed citizenry. This type
of right may appear paradoxical to us today, but it fitted "the inner coher-
ence of a given system of beliefs" 4 held by people in the past, and which
made sense to those familiar with the concept of an individual right exer-
cised collectively.
It is their context that this essay seeks to uncover and to add to our un-
derstanding of that right. Explaining the need to derive meaning from con-
text, Quentin Skinner writes, "We need to begin by recreating as sympa-
thetically as possible a sense of what was held to connect with what, and
what was held to count as a reason for what, among the people we are
studying."5These people were scarcely a monolithic group of "framers"-
a concept recognized as ahistorical not only today6 but for centuries by
those attempting to understandthe meaning and intent of lawmakers. Writ-
ing in the sixteenth century of the need to apply statutes by inquiring and
acting ex mente legislatorum, Sir Thomas Egerton admitted that such an
inquiry was plagued by the participationof "so manie heades as there were,
so many wittes; so many statute makers, so many myndes." Even so, he
pushed on, for "notwithstanding, certen notes there are by which a man
maie knowe what it was."7
This essay seeks to uncover and examine an overlooked historical context
of the Second Amendment so that we "maie know what it was" when we
try to understandits historical meaning. It does not present a normative in-
terpretationof the Second Amendment, although the context it uncovers has
inescapable meaning to today's originalist debate and the goals of its pro-
tagonists.8This is not the first time, to be sure, that interpretationof the Sec-
4. QuentinSkinnerhas ably explainedhow apparent historicalparadoxescan deflectus
fromunspokenbut fundamental underlying politicalbeliefs and lead us to fail "to identify
some local canon of rationalacceptability."QuentinSkinner,"A Reply to My Critics,"in
Meaningand Context: Quentin Skinner His Critics,ed. JamesTully(Princeton:
and Princeton
UniversityPress, 1988), 244.
5. Ibid. Emphasisadded.
6. Neil Richardswarnsagainstsucha fallacyandexpresslyeschewscapitalizing "framers"
("Clioandthe Court: Re-Assessment the Supreme
A of Court'sUses of History," Journalof
Law & Politics13 [1997]:845). Fora succinctsummary theway theplurality viewpoints
of of
amongbothFederalists Antifederalists undergone
and has into
"homogenizing" two distinct
groups,see SaulA. Cornell,TheOtherFounders: Anti-Federalism the DissentingTradi-
and
tion in America,1788-1828 (ChapelHill: University NorthCarolina
of Press, 1998), 6-8.
7. A Discourseuponthe Exposicion& Understanding Statutes:With Thomas
of Sir Eger-
ton'sAdditions, SamuelE. Thorne
ed. (SanMarino: Huntington Library,1942), 151.Lestone
be guiltyof an ahistorical of Egerton, mustbe notedthathis workreferred "theEx-
use it to
posicionandUnderstanding Statutes," not to their"interpretation,"
of and a termthatconnot-
ed farmorejudicialauthority thanhe or anyoneelse at the time wouldhaveaccepted.
8. The term"originalism" datesfrom 1980, when PaulBrestintroduced in a strenuous
it
of
critique "thefamiliar to
approach constitutional that
adjudication accords bindingauthority

5. 122 Law and History Review, Spring 2004
ondAmendment had recourseto history:whatis now settledConstitu-
has
tionaldoctrine to the meaningof "therightof thepeopleto keepandbear
as
arms" drewon historicalsourcesin 1939, whenthe Supreme Court, Mil-
in
ler v. U.S.,heldthattheamendment protected only thoserightshaving"some
reasonable relationship the preservation efficiencyof a well regulated
to or
militia."Since that time the Courthas not expressedany opinionson the
meritsof thatdecisionor on challengesarguing the framers 1791had
that in
established individual
any rightof a privateperson "tokeepandbeararms."9
This historicallygroundeddefinitionfrom 1939 is now underserious
challenge, as many scholars have put forwarda contraryinterpretation
advancingthe right as an individualone. The variousstrandsof scholar-
this
ship supporting argument have been anointedthe "Standard Model"
of Second Amendmentinterpretation its proponents: unifiedtheory
by a
that saw the amendment articulating only the right and obligation
as not
of armedcitizens to defendthe stateagainstinvasion,butto protectthem-
selves collectivelyagainstthe tyranny the stateandindividually
of against
the violence of theirneighbors.10
At the veryleast,the present and
essay aimsto provide deepened broad-
a
ened context for "the complexes of thoughtlying behind the wordsand
clausesof the Constitution, becausethathistoryfeeds directlyintothe orig-
inalismthathasbeenin the ascendant sincethe early1980s."'As usedhere,
therefore,"historical context"is an intellectual,political,andconstitution-
to the text of the Constitution the intentionsof the adopters."
or of
Brest was responding,
course, to an argumentalready"familiar," since 1980 the debate over thattermhas
and
generateda vast literature articles,books, and law review symposia.See, for example,
of
Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution
(New York:A. A. Knopf, 1996), esp. chap. 1, "ThePerils of Originalism," 3-22; also, his
in the
collection of a rangeof opinionson both sides of the controversy Interpreting Con-
stitution(Boston:BedfordBooks, 1990). See also the special symposiumissue, "Fidelity
in Constitutional Theory,"Fordham LawReview65 (1997).
9. 307 U.S. 174, at 178. In his opinion,AssociateJusticeJamesMcReynoldscited "the
debatesin the [Constitutional]Convention, historyandlegislation ColoniesandStates,
the of
and the writingsof approved commentators," includingone contemporaryhistorian(ibid.,
178-82). In 1983 the SupremeCourtdeniedcertiorari Quiliciv. Villageof MortonGrove,
in
holding thatthe SecondAmendment not applyto the possessionof handguns issue
did at
(695 F. 2d 261 [7thCir.1982],certdenied,464 U.S. 863 [1983]).Onecannotinferanopinion
on the meritsof a case froma denialof certiorari, however.
10. On the emergenceof this controversy the legal academy, CarlT. Bogus, "The
in see
Historyand Politics of the SecondAmendment: Primer,"
A LawReview76
Chicago-Kent
(2000): 3-25. For a chronologically arrangedbibliography the competinginterpretations,
of
the
see the table and appendixto RobertJ. Spitzer,"Lostand Found:Researching Second
Amendment," ibid.,384-401. GlennHarlan
in Reynoldsofferstheterm"Standard Model" in
his "ACritical Guideto theSecondAmendment" Tennessee Review62 (1995):461-512.
Law
11. StuartBanner,"LegalHistoryand Legal Scholarship," WashingtonUniversity Law
Quarterly (1998): 37, 40.
76

6. The Second Amendment:A Missing TransatlanticContext 123
al contextknown and availableto the politicalcommunityarguingfor the
rightin question,and whose relevanceto the discussionswas apparent to
those takingpartin them.It seeks to recovera commonlyrecognizedand
explicitlycited tradition allowedparticipants the politicalprocessto
that in
frametheirlocal, ongoingeventswithina larger processof whichtheyknew
andacknowledged they were a part.12
Finally,it mustremainstrictlywith-
in the temporal parameters the peoplebeing studied,sharplyandclearly
of
limited by the terminusad quem of 1791, and unaffectedby subsequent
politicaleventsthatforcedreassessments introduced motivations
or new and
factorsthatchangedthe very meaningof wordsthemselves.13
I. The Scottish Example and the British Background
of the Militia Debate
It is a commonplaceamonghistoriansthat Revolutionary Americanssaw
themselvesas fightingfor therightsof Englishmen. Indeed,one scholarhas
arguedthatthe "Englishinfluenceon the SecondAmendment the miss-
is
ing ingredient thathas hamperedeffortsto interpret intentcorrectly."'4
its
Americanswere not, however,truly"English" much as they were Brit-
so
ish, a distinctionthey knewwas muchmorethansemantic,especiallywhen
12. JackN. Rakoveputs its clearly in describinghis goals in findingthe "meaning" of
the Constitution's text:"[T]towhat extentdid the structure debateand decision-making
of
in 1787-88 enable a coherentset of intentionsandunderstandings form aroundthe text
to
of the Constitution?"; "[W]henwe do ask whatthe framersandratifiersthoughtabout
and
particularsubjects,how do we reconstruct theirideas and concerns?" (OriginalMeanings,
to
xiv). JackP. Greeneaddresses way people in the past attempted articulate
the theirplace
in historyas "the dauntingtask of tryingto renderit comprehensible, both to those who
belong to it and those who do by identifyingand definingthose commonfeatures
not,....
of behaviorandbelief, of collective andindividualexperience... ." ("TheIntellectualRe-
in in
construction Virginia theAge of Jefferson," Jeffersonian
of Legacies,ed. PeterS. Onuf
[Charlottesville:UniversityPress of Virginia,1993], 225).
13. Forthis reason,the presentessay does not deal with questionsconcerningthe subse-
quentimpactof the fierce political contests of the Federalistera. Nor does it addressthe
impactof the Fourteenth Amendmentand the incorporation the amendment,
of discussed
by Akhil Reed Amar in The Bill of Rights: Creation and Reconstruction (New Haven: Yale
UniversityPress, 1998), 46-59, 257-66, andby DavidYassky,"TheSecond Amendment:
Structure, History,andConstitutional MichiganLaw Review99 (2000): 651-60;
Change,"
nor does it discuss the proposition the amendment
that to
mightbe "translated" contempo-
raryissues, as suggestedin the generalmodel presented LawrenceLessig, "Fidelityas
by
Translation: Fidelityas Constraint,"FordhamLawReview65 (1997): 1365-1433, withcom-
ments to 1517; or by JeffreyRosen, "Translating Privilegesand ImmunitiesClause,"
the
George Washington University Law Review 6 (1998): 1241-68, with comments to 1297.
14. Joyce Lee Malcolm, To Keep and BearArms: The Origins of an Anglo-American Right
UniversityPress, 1994), xii.
Harvard
(Cambridge:

7. 124 Law and History Review, Spring 2004
matters constitutional were at issue."' It is this transatlanticBritish context,
therefore, thatis missing. Americans sharedthe experience of those who had
claimed the coequal rights of Englishmen only to see them denied by a
metropolitan government that regarded those living outside England-and
even many of those living in the "country"beyond the court at London-as
rude provincials bearing the "stigmas" of inferior culture and lesser consti-
tutional status. "A sense of inferiority pervaded the culture of the two re-
gions," write Bernard Bailyn and John Clive of Scotland and North Ameri-
ca, "affecting the great no less than the common." For good reason the
American Revolutionaries proudly claimed the British legacy of "Whigs."
Once a term of derision that some associated with the Scots,16it became the
proud name of the parliamentaryopposition that stood against the Stuartsin
the 1670s; when a Whig oligarchy proved no less dangerous to liberty in the
eighteenth century, they became "TrueWhigs" or "Real Whigs" continuing
the struggle."1
To British North Americans, their constitutional history thus included
not only England's experience, but that of a Greater Britain whose exam-
15. JohnPhillip Reid, perhapsthe most notablescholarof the transatlantic antecedents
of American Revolutionary legal thought,notablydiscusses"TheBritishness Liberty"
of in
his The Conceptof Libertyin theAge of theAmericanRevolution(Chicago:University of
ChicagoPress,1988), 14-17. See, generally, LindaColley,Britons:Forging theNation, 1707-
1837 (New Haven:Yale UniversityPress, 1992), 30-43. In recentyears, historianshave
shownhow a broadened "British" perspectiveilluminates historyof boththeBritishIsles
the
and its far-flung colonies. See "Forum: The New BritishHistoryin AtlanticPerspective,"
American HistoricalReview104 (1999):426-500. Especiallypertinent thecontributions
are
of DavidArmitage,Ned Landsman, Eliga Gould.
and
16. Bernard Bailyn andJohnClive, "England's Cultural Provinces:ScotlandandAmeri-
ca," William Mary Quarterly, ser., 11 (1954): 209-10. On the "'country'
and 3d. vision of
English politics"held by "anti-Court independents within Parliament the disaffected
and
without," Bernard
see Bailyn,IdeologicalOriginsof theAmerican Revolution (Cambridge:
Harvard UniversityPress, 1967):35-36. Scottishradicalschafedat theircountry'ssubordi-
nationunderwhatthey sneeringlycalled "thecelebratedUnion,"and theAmericanRevo-
lutionprovided only a democratizing
not exampleto emulate, an argument theScots,
but that
too, should seek "a wise, virtuous,and independent for
government" Scotland(Michael
Durey,Transatlantic Radicalsand theEarlyAmerican Republic (Lawrence: University Press
of Kansas,1997), 74; Oxford s.v.
EnglishDictionary,http://dictionary.oed.com, "whig").
17. Caroline Robbins,TheEighteenth-Century Commonwealthman: Studiesin the Trans-
mission,Development and Circumstance EnglishLiberalThought
of from the Restoration
of CharlesII until the Warwith the ThirteenColonies(New York: Atheneum,1959). Rob-
bins labels this group as small and ultimatelyunsuccessfulin Englishpolitics,but impor-
tantfor having"servedto maintain revolutionary
a traditionthereandto link the histories
of English strugglesagainsttyrannyin one centurywith those of Americaneffortsin an-
other.The Americanconstitution employs manyof the devices the Real Whigs vainlybe-
soughtEnglishmento adoptandin it must be foundtheirabidingmemorial" (ibid.,4). On
A
"PowerandLiberty: Theoryof Politics"in Revolutionary America,see Bailyn,Ideolog-
ical Origins,chap. 3, 55-93.

8. The Second Amendment:A Missing TransatlanticContext 125
ple loomed large in their awareness.1s Historians have amply demonstrat-
ed the "varied ways the intellectual bond linking America and Great Brit-
ain in the colonial period could make its presence manifest," and how
"events of that period frequently come more sharply into focus when British
history on a similar subject is examined." Constitutional issues in particu-
lar reveal "wholesale borrowing of the slogans, metaphors, and images"
of earlier British disputes.19
The life and writings of James Burgh, who left the University of St.
Andrews for London and whose circle in the capital's radical community
included Joseph Priestley, Richard Price, and Benjamin Franklin, illustrate
this transatlanticconnection. With the empire in political crisis in the 1770s,
Burgh explicitly merged the inferiority of all provincial British identities
when he addressed part of his Political Disquisitions "to the independent
Part of the people of GREAT-BRITAIN, IRELAND, and the Colonies" in
1775.20 Cited in The Federalist, Burgh's work was widely read in Ameri-
ca because of its sympathetic evocation of shared ideas and grievances.
Burgh's writings, note Oscar and Mary Handlin, had special resonance in
North America, bearing "striking resemblances to that which Americans
reached by positive generalizations about the institutions which had in
actuality evolved about them." Aware of the common grievances of pro-
vincial Scots and Americans, Burgh sent his 1774 London edition to John
Adams, who wrote back to Burgh thanking him and lavishing praise on his
18. On how colonialAmericansrecognizedtheirrole in the largersweep of the history
of liberty,see David ThomasKonig, "Constitutional Contexts:The Theoryof Historyand
the Processof Constitutional Changein Revolutionary America," Constitutionalism
in and
AmericanCulture: Writing New Constitutional
the History,ed. Sandra VanBurkleo,
F. Ker-
mit Hall, andRobertJ. Kaczorowski (Lawrence: UniversityPress of Kansas,2002), 3-28.
19. PaulS. Boyer,"Borrowed Rhetoric: Massachusetts
The of
Excise Controversy 1754,"
William Mary Quarterly, ser.,21 (1964): 328-51. The episode in questionreached
and 3d.
back to a Britishcontroversy 1733.
of
20. JamesBurgh,"Conclusion," PoliticalDisquisitions: Enquiry PublicErrors,
in An into
Defects,andAbuses.Illustrated and establisheduponFactsandRemarks,
by, extractedfrom
a varietyof Authors,ancientand modern.Calculatedto draw the timelyattentionof Gov-
ernmentand People to a due Consideration the Necessity,and the Means, of Reforming
of
those Errors,Defects, and Abuses;of Restoringthe Constitution, Saving the State, 3
and
vols. (Philadelphia,1775), 3: 267. Burgh'sand Franklin's mutualaffinityis worthnoting,
especiallyin view of the similarities betweenthe former'sDignityof HumanNature(1754)
andthe latter'sPoor Richard's Almanack, which was publishedfrom 1733 to 1758. In fact,
the authorship "TheColonist'sAdvocate"letters(1770) has been attributed both men.
of to
CarlaHay,"Benjamin Franklin, JamesBurgh,andtheAuthorship 'TheColonist'sAdvo-
of
cate' Letters,"Williamand Mary Quarterly, ser., 32 (1975): 111-24. Whoeverthe au-
3rd
thor,what is significantfor a properappreciation this sharedtransatlantic
of political cul-
ture is thatthis work, like so many othersat the time, was "a work of compilationrather
thanan originaleffort." Hay, ibid., 120, remindsus that sharingandborrowingwere char-
acteristicof eighteenth-century politicaldiscourse.

9. 126 Law and History Review, Spring 2004
"invaluable" Circulating volumes to his friends,Adams wroteto
gift. the
Burgh, "I have contributedsomewhat to make the Disquisitions more
knownand attended in severalpartsof America,andthey areheld in as
to
high estimation all my friendsas theyareby me. The moretheyareread,
by
the more eagerly and generallythey are soughtfor."21
Adams'seffortsmusthavebeen successful:two yearslater,the residents
of the westernMassachusetts town of Pittsfield,demanding new consti-
a
tutionfor the formercolony, restedtheirhopes on "someof the Truths we
firmly believe andarecountenanced believingthemby the mostrespect-
in
able political writersof the last andpresentcentury,especiallyMr.Burgh
in his political Disquisitionsfor the publicationof which one half of the
Continental Congressweresubscribers."22 Indeed,demand theworkwas
for
such that Robert Bell, a Scottish bookseller in Philadelphiawho would
publishThomasPaine'sCommon Sense in 1776, undertook 1775Amer-
a
ican edition whose prepublication "Encouragers" includedGeorgeWash-
ington,SamuelChase,JohnDickinson,Silas Deane,JohnHancock, Thom-
as Jefferson, Thomas Mifflin, Thomas McKean, Robert Morris,Roger
Sherman, JohnSullivan,JamesWilson,andAnthonyWayne.Fifteenyears
later,Jeffersonrecommended to his new son-in-lawThomasMannRan-
it
dolph, especially as a practicaldemonstration politicaltheory.23
of
For Burgh, "historywas an inexhaustiblemine out of which political
knowledgewas to be broughtup."24 His second volume, "whichtreatsof
the colonies,"was largelydevotedto the way parliamentary had
corruption
poisoned the government the colonies. Directlyaddressing question
of the
of constitutionalsubordination within the empire,Burghmaintained that
"thecolonistsdo not deserveto be deprived the nativerightof Britons."
of
21. TheFederalist#56. The editioncited hereinis thatof JacobE. Cooke,TheFederalist
(Middletown:WesleyanUniversity work
Press, 1961),citationat 382. BailynlabelsBurgh's
the "keybook"of the Revolutionary generation (IdeologicalOrigins,41). OscarandMary
Handlin, "James Burgh and Revolutionary Theory," Proceedings of the Massachusetts His-
torical Society 73 (1961): 52. John Adams, The Worksof John Adams, Second President of
the United States: with a Life of the Author;Notes and Illustrations by his Grandson Charles
FrancisAdams, 10 vols. (Boston:Little, Brown, 1850-56), 9: 350-51.
22. May 29, 1776. The Popular Sources of Political Authority: Documents on the Massa-
chusettsConstitution 1780, ed. OscarandMaryHandlin(Cambridge:
of Harvard Universi-
ty Press, 1966), 91.
23. I am indebtedto Prof.RichardSherfor bringingBell's editionof Common Senseand
the list of subscribers the Philadelphia
in editionof the Disquisitionsto my attention.The
list can be foundat the beginningof volumeIII.In advertising American
the edition,Burgh
announced thatthis newly completedthirdvolume was "peculiarly necessaryat this Time
for all the Friendsof CONSTITUTIONAL LIBERTY, whetherBritonsorAmericans." Jef-
fersonToThomasMannRandolph, May30, 1790,ThePapersof Thomas Jefferson, Julian
ed.
P. Boyd et al., 28 vols. (Princeton:
PrincetonUniversityPress, 1950- ), 16: 449.
24. Robbins, Commonwealthman, 364-65.

10. The Second Amendment:A Missing TransatlanticContext 127
With good reason he warnedthat groundingliberties on one's status as
"English" a dangerous
was presumption anyonenot living in England:
for
the termprivilegedmetropolitan rights at the expenseof those claimedby
provincialson bothsides of theAtlantic.He notedthe "affectation call-
of
ing the Britishparliament Englishparliament, was usual andproper
the as
beforethe union;but ridiculousso long as the union subsists."25 Brit-
For
ish NorthAmericans,this sharedhistoryloomed largeas a cautionary tale
of how provinces might be submerged,suppressed,and oppressedby a
metropolitan centeror how, from a union of supposedequals, one partner
might come to dominateanotherand enslave it underthe heel of military
threat.It was in this sharedhistoricalexperienceas Britonsthat the con-
stitutionalgoals of the Revolutionary mustbe seen, and especially so
era
within the context of forming the federal union. "The history of Great
Britain," wrote JohnJay in TheFederalist,"is the one with which we are
in generalthe best acquainted, it gives us manyusefullessons.We may
and
profitby theirexperience,withoutpaying the price which it cost them."26
The right to bear arms was a deeply cherishedright whose value lay
firmlyembeddedin the historyof the peoples of Britain.Contextualizing
this rightpurelywithinthe English experiencemay mislead us,27 because
for Scots, as provincialBritons,the issue had special meaningand epito-
mized their grievancesas constitutionally subordinate. loss represent-
Its
ed not merelya theoretical buta historicallydemonstrable
possibility, fact.
Thathistory,moreover, was still unfoldingbeforetheireyes, andthe Scot-
tish experiencetherefore specialresonanceat the draftingof the Con-
had
stitutionand the Bill of Rights.28 historyof Scottish subordination
The at
the handsof the Englishwas commoncurrency amongthose BritishNorth
Americanswho traveledto Britain or who were educatedby the many
25. Burgh, Political Disquisitions, 2: vii; "Conclusion," 279, 3: 336.
26. John Jay, The Federalist #5, 24.
27. Malcolm,ToKeepand Bear Arms,largelyconfinesitself to the seventeenth century
andthenleaps forward time to 1791 withoutmentionof the profound
in eighteenth-century
events and strugglesthatintervenedand provideda powerfulcautionary historylesson to
those whose reservations aboutthe Constitution to the draftingand ratification the
led of
Second Amendment.For a critique, see Lois Schwoerer,"To Hold and Bear Arms: The
EnglishPerspective," Chicago-Kent LawReview76 (2000): 27-60.
28. DanielWalkerHowe arguesfor a Scottishsocial andintellectual,thoughless explic-
itly political,perspective "Whythe ScottishEnlightenment Useful to the Framers
in Was of
the American Constitution," Comparative Studies in Society and History 31 (1989): 572-
87. For Scottish Enlightenmentinfluenceon state constitutions,see Durey, Transatlantic
Radicals,51. Scottishradicalschafed at theircountry'ssubordination under"thecelebrat-
ed Union,"and the AmericanRevolutionprovidednot only a democratizingexample to
emulate,but an argument the Scots, too, should seek "a wise, virtuous,and indepen-
that
dentgovernment" Scotland(ibid.,74). Also useful is AndrewHook,ScotlandandAmer-
for
ica: A Study of Cultural Relations, 1750-1835 (Glasgow and London: Blackie, 1975).

11. 128 Law and History Review, Spring 2004
Scottish emigres who broughttheir resentmentswith them.29 Especially
proudof their militaryheritage, Scots lamentedthe way the militias of
LowlandScotlandhad been allowed to deteriorate were not reconsti-
and
tuted at the Act of Union. Variousefforts to do so were frustrated, and
passage of a bill to restorethe Scottish militia in 1708 prompted last
the
exercise of the royal veto.30Seven years laterParliament went a step far-
ther and disarmedthe Highlandcounties afterthe failureof the "lateun-
natural rebellion" the in
supporting royalclaimsof the oustedStuarts 1715.
The "actfor more effectualsecuringthe peace of the Highlandsin Scot-
land"exemptedthose owning the large sum of ?400 in property, who or
voted,butmadeit a criminaloffense, punishable fine andforfeiture,
by for
anyone else in those counties "to have in his or her custody,use or bear
broadsword,or target,poynard,whingar,or durk,side-pistolor side-pis-
tols, or gun, or any other warlike weapons, in the fields, or in the way,
coming or going to, from,or at any church,market,fair,burials,huntings,
meetings,or any otheroccasion whatsoever... or to come into the Low-
Countries armed, as aforesaid.... "31
Jacobiteinsurrection eruptedagain in 1745, and afterthat "mostauda-
cious andwickedrebellion," Parliament strengthened banon keeping
its and
bearing weapons Thoughit continued exemptthosethat
in the Highlands. to
it hadin 1715,in 1746it no longerdistinguished betweenarmskeptathome
andthose bornepublicly.Instead,it set out an elaborate program notifi-
of
cationof summonsto deliverweaponsand providedfines, imprisonment,
conscription "hisMajesty's
into or "to
forcesinAmerica" transportation any
of his Majesty'splantations beyond the seas"for "all personssummoned
to deliverup theirarmsas aforesaid,who shall,from and afterthe time in
such summonsprefixed,hide or conceal any arms,or otherwarlikeweap-
29. JamesMadison'seducationat Princeton, whosepresident Scot JohnWitherspoon
the
exertedenormousinfluenceover students,is but one example.IrvingBrant,JamesMadi-
son. TheVirginiaRevolutionist, vols. (Indianapolis:
6 Bobbs-Merrill,1941), 1: 77. Wither-
spoon suggestedreadingsthatwere heavily weightedtowardthe ScottishEnlightenment.
WilliamSmith of Aberdeenbecame the firstprovostof the College of Philadelphia, and
fellow Aberdonian WilliamSmallwas ThomasJefferson's mentorat the Collegeof William
and Mary.Robbins,Commonwealthman, Born and educatedin Scotland,JamesWil-
194.
son was deeplyinfluenced theeducation receivedat St. AndrewsandEdinburgh.
by he Mark
David Hall, The Political and Legal Philosophy of James Wilson, 1742-1798 (Columbia:
accorded con-
University MissouriPress, 1997), 8-9. Fora surveyof the importance
of this
nection in Americanhistoriography, RichardSher's remarksin RichardB. Sher and
see
Jeffrey R. Smitten, eds., Scotland and America in the Age of the Enlightenment (Princeton:
PrincetonUniversityPress, 1990), 1-13.
30. John Robertson, The Scottish Enlightenment and the Militia Issue (Edinburgh: J.
Donald, 1985), 6. J. R. Western, The English Militia in the Eighteenth Century. The Story
of a Political Issue, 1660-1802 (London: Routledge & Kegan Paul, 1965), 162.
31. 1 Geo. I, c. 54 (1715).

12. A
The Second Amendment: Missing TransatlanticContext 129
ons, in any dwelling-house, barn, out-house, office, or any other house, or
in the fields, or any other place whatsoever, and all persons who shall be
necessary or privy to the hiding or concealing such arms...."32
The law again provided specific description of weapons banned: the
Duke of Cumberland, who had led the Hanoverian military forces in pun-
ishing Scotland, expressly requested "swords to be named particularly as
they won't understand them to be arms."33So broadly was the notion of
"arms" construed that one court is said to have found bagpipes to be "an
instrument of war."34
Scottish historians saw in their nation's forlorn past many object lessons
of how metropolitan England, dominated first by tyrannical monarchs and
then by a corrupt and arrogantParliament, could suppress and exploit hap-
less and defenseless provincials. William Robertson, who had joined oth-
er Scottish volunteers in a vain attempt to halt the Jacobite assault on Ed-
inburgh in 1745, identified the galling treachery of the Scots' own "native
Prince" in destroying local military power. In the conclusion to his Histo-
ry of Scotland, he lamented how James VI of Scotland, once he became
James I of England, had undermined the military power of the Scottish
people organized and led by their feudal lords. "As long as the military
genius of the feudal government remained in vigor," he wrote, the Crown
could not become "the supreme law of Scotland" and had to respect local
rights. But "the military ideas, on which these rights were founded, being
gradually lost or disgraced, nothing, remained to correct or mitigate the
rigour with which they were exercised."35
James Burgh, reminding the "independent Part of the people" of Brit-
ain's provinces on both sides of the Atlantic of Scotland's lost pride and
independence, recalled, "The Scots in those days, when the spirit of liber-
ty ran highest, were always called by the parliaments, our brethren; not as
now, the slavish, beggarly, itchy, thieving Scots." Charles II and James II
also had "debauched the militia," but an armed citizenry organized and led
by its local lairds had nevertheless managed to demonstrate the enduring
value of a militia in the next century. The failures of militia at various bat-
tles on both sides of the Atlantic might give pause to its advocates, but
32. 19 Geo. II, c. 39 (1746).
33. W. A. Speck, TheButcher:TheDuke of Cumberland the Suppression the 45
and of
(Oxford:Blackwell, 1981), 173.
34. PeterHumeBrown,Historyof Scotland, 3 vols. (Cambridge:
Cambridge
University
Press, 1909), 3: 328n.
35. William Robertson, The History of Scotland during the Reigns of Queen Mary, and
KingJamesVI. Tillhis Accession to the Crownof England,with a Reviewof ScottishHis-
tory to that Period, 11thedn. (1787; reprint
Aberdeen:G. Clarkand Son, 1847), 386-87.
The firsteditionappeared 1761. A New Yorkedition appeared 1787.
in in

13. 130 Lawand History Spring2004
Review,
Burghofferedas counterexamples theirsuccesses in the Jacobiterisingof
1745, in which"tworemarkable victoriesgainedby the ruffian rebels,A.D.
1745, over the king's troops,shew thata militia is not so contemptible as
the friendsof a standingarmyaffectto think." described,too, the "New
He
Englandmilitia,whichtookLouisbourgh, 1745,"andlateremphasized
A.D.
the pointby praising militias"inourown plantations."
the American readers
could scarcelyignorethe point.As they struggledto learnfromhistoryin
the draftingof theirown stategovernments, latera nationalstructure,
and
they constantly encountered denunciations standingarmiesandcalls for
of
a vigorous militia. Indeed,this policy was a staple of conventional theo-
ry-part of "thecommonstockof European in the words
politicalthought,"
of one close studentof the subject.36
the
Crushing "Forty-Five" a
produced bloodbath punitivesuppression
of
in the Highlands.Hanoverian forces underthe Duke of Cumberland de-
stroyed the Scottishforces at Cullodenin April 1746 in a battlewhere,an
English participant admitted,"ourmen have been prettysevere and gave
no quarter." duke followed his victorywith ordersto searchhomesin
The
pursuitof fleeing rebels;his raidingpartiesbecame"legendary brutal-for
ity and bloodshed," turning Scotlandinto "virtually occupiedterritory."37
This merciless and vengeful campaignof murderand destruction would
teach the Jacobitesa bitterlesson in loyalty.
It taughtanother lesson, as well, to those Scots unsympathetic the re-
to
bellion, becausethe Jacobitesscarcelyrepresented generalScottishpo-
a
litical will. Indeed,theirrebellionshocked and embarrassed manyothers
as misguidedor worse. Scottishreformers seen not only thatthe High-
had
landshadlain open anddefenselessagainstthe atrocitiesof Englishtroops
underthe Duke of Cumberland, also thatloyal Scots in the Lowlands
but
(the majority of the Scottishpopulation) been militarilyhelplessat the
had
startof the rebellionto turnbackwhatthey saw as wild andlawlessHigh-
landers."Therebellionwas quelledat last,"notedAlexanderCarlyle;"but
not till it had openedthe eyes of every thinkingman, and shownhim our
bosom bareand defenceless." anonymousauthor,chagrined the fall
An at
of the capitalto the Jacobites,wrotea satiricalattackon the unarmed and
36. Burgh, Political Disquisitions, 3: 351; 2: 412, 417. John Robertson, Scottish Enlight-
enmentand theMilitia,9. Robertson providesotherexamplesof Britishwriters
whoseworks
and
enjoyed a wide readership powerfulinfluencein the AmericanRevolution, especially
in the sharedoppositionto a standingarmy.AmongthemwereAndrewFletcher Saltoun,
of
whose impactwill be discussedbelow.
37. Speck, TheButcher,137-73 (quotations 145, 169). LindaColley moredispassion-
at
ately describesthe contemporary impactof this campaignandobserves,that"thegenocide
that had reputedlyfollowed the Battle of Culloden was reminderenough of the English
capacityfor racialismand hate"(Britons,117).

14. The Second Amendment: Missing TransatlanticContext
A 131
pacific Lowlanders whose lack of armshad compelledArchibaldStewart
ignominiously to handover the capitalto the rebels.The reasonwas clear
to readers: Englishhad neglectedthe Scottishmilitia.38
the
Not only the Scottishmilitia had sufferedby neglect, however.By the
middleof the eighteenth century, own militiahadonce againfall-
England's
en into seriousdecay,owing to popularresentment its use for political
of
suppression theresistance laborers
and of impoverished the financial
by sac-
rifice of service.39 with Francein 1756, however,forcedParliament
War to
an extensiveoverhaul Britain'smilitaryforces,includinga rehabilitation
of
of the militia.It voteda millionpoundsfor defensethatyear,40andthe next
yearturnedto revivingthe militia.Urgedon Parliament WilliamPittin
by
efforts to rally the kingdom,its preambleset out the purposeof the bill:
"Whereas well orderedand well-disciplinedmilitiais essentiallyneces-
a
sary to the safety,peace and prosperityof this kingdom:and whereasthe
laws now in being for the regulationof the militia are defectiveand inef-
fectual... ."Althoughthe act required Englishcountyofficials to compile
lists of "allmen"fromeighteento fifty yearsof age, it limitedthe numbers
actuallyto be recruited and allowed substitutesto serve in place of those
named.The act of 1757ranto seventy-three sectionsandincludeddetailed
provisionson the conductandenforcement recruitment, selectionof
of the
officers,the obligation countylieutenants theirdeputies"tomeet,and
of and
formthe militiainto regiments," the entrusting "arms,clothes, and
and of
accoutrements" the properofficeror chosen personnel.41
with
In spite of the warcrisis, the law generatedstiff resistancefor the same
reasonsit had done so before. But one omission especially enragedBrit-
ons northof the Tweed:no militiaregimentswere to be organizedin Scot-
38. Alexander Carlyle, The Question Relating to a Scots Militia Considered in a Letter
to the Lords and Gentlemen who have Concerted the Form of a Law for that Establishment
(Edinburgh, 1760), 12-13. A TrueAccount of the Behaviour and Conduct ofArchibald Stew-
art, Esq.; late Provost of Edinburgh (1748), cited by David R. Raynor, ed., "Sister Peg": A
Pamphlet Hitherto Unknown by David Hume (Cambridge: Cambridge University Press,
1982), 2. Hume'sauthorship "SisterPeg" is open to seriousdoubt,andAdamFerguson
of
is the morelikely author; this question,see n. 46, below.
on
39. T. A. Critchley, The Conquest of Violence: Order and Liberty in Britain (London:
Constable, 1970), 59-67. Eliga Gould, The Persistence of Empire: British Political Culture
in the Age of the American Revolution (Chapel Hill: University of North Carolina Press,
2000),72-105.
40. 29 Geo. II, c. 29 (1756).
41. 30 Geo.II,c. 25 (1757). lawrequired "allthemuskets
The that delivered theser-
for
vice of the militia, shall be markeddistinctlyin some visible place, with the letterM, and
the nameof the county,ridingor place, to which they belong"(ibid., sec. 42). No weapons
were to be issued until the unit had been constituted(sec. 35), and militiamenwere to re-
turnthemafterexercises(sec. 36). Colonelsor county lieutenants were authorized seize
to
weaponsif "necessary the peace of the kingdom"(sec. 33).
to

15. 132 Law and History Review, Spring 2004
land, thereby excluding the Scots from service and depriving them of the
right to organize their own militias.42All of Scotland, not merely the wild
and untrustworthy Jacobite Highlands, was now deprived of a militia.
Reflecting the sentiments of a majority of Scots, Scottish members of Par-
liament tried in 1760 to introduce a militia bill, only to prompt King George
III to comment derisively, "Pray, throw it out." To Scottish militia advo-
cates, this rejection was more than a political slight: it was a violation of
the constitutional relationship established when the Act of Union created
two coequal sovereignties. Insisting that "'the established constitution of
Scotland with regard to arms' continued 'unaltered to this day,"' militia
proponents demanded the constitutional right of the Scots to bear arms in
their own militia. To Alexander Carlyle, "this constitutional law" must pass.
"What have we done," he asked, "to forfeit our rights as Britons, even for
a single hour?" Calling for "the full completion of the union," he contin-
ued, "Happy we should be, if there were no bar in the way to prevent the
immediate extension of every constitutional law in this part of the king-
dom! Thrice happy, if possessing every privilege of Britons, we knew the
value of freedom, the greatest of human blessings, and felt that quiet sense
of liberty, which animates our countrymen beyond the Tweed." The eco-
nomic benefits of union had been great, but the loss of the militia revealed
that Scotland's numerical inferiority in Parliament would entail humiliat-
ing political inequality and the inability to protect its constitutional rights.
As the militia bill wavered in the Commons, Carlyle ruefully remarked"that
if the militia-bill, now brought into parliament, does not pass, it had been
as good for Scotland that there had been no union." Their efforts availed
nothing, and George III had no need to use the royal veto for the same
purpose Queen Anne had used it a year after the Act of Union, in 1708.
The bill failed miserably in Parliament.43
When the Scots demanded a corps that would serve the same purposes
as that of England, they sought the extension of the English Militia Act of
1757, whose preamble set out its purpose: "Whereas a well ordered and
42. Gould,Persistence, 72-105. Parliament 1759hadto respond the "littleprogress"
in to
madein recruiting some counties(32 Geo. II, c. 20 [1759]). A yearlater,Parliament
in was
forcedto act whenrecruitment "suspended" certaincountiesowing to a lackof those
was in
"qualified willing to acceptcommissions"(33 Geo. II, c. 20 [1760]). Not all Scots fa-
and
voredthe militia,andmany-especially the poor-resented the possibilityof enforcedser-
vice; forthe dissenters,see Gould,Persistence,95-96. Nevertheless, demand a Scot-
the for
tish militia enjoyed broadsupportamong Scots. Brown,History of Scotland,3: 341-42,
this as
describes support existingdespitelingering fearsthata Scottishmilitiamightbe turned
to Jacobitepurposes.
43. Robertson, Militia Issue, 143, 157, 108-12. Western,EnglishMilitia, 167. Carlyle,
Scots Militia, 19, 29, 30-31, 36. See also "Abstract a plan for a militia for Scotland,"
of
Edinburgh Chronicle,March17 to 19, 1760, at 9.

16. The Second Amendment: Missing TransatlanticContext
A 133
well-disciplined militia is essentially necessary to the safety, peace and
prosperity of this kingdom. .. ." Militia advocates complained loudly that
"the highest privilege of Britons" was to bear arms, and they were being
stripped of an essential guarantee of their liberty. "It is by arms alone,"
wrote one Scottish patriot, "thatwe can preserve to ourselves a name among
nations." It was also through arms alone that a civic spirit could be main-
tained to preserve Scottish liberty in an age of ever-increasing luxury and
ease, for, as Adam Ferguson explained, "A people who are disarmed in
compliance with this fatal refinement, have rested their safety on the plead-
ings of reason and justice at the tribunal of ambition and force."44
The preamble to the Militia Act was not mere window dressing, but a
statement of purpose and a legislative command that its meaning be fol-
lowed. As Parliament failed to maintain even the English militia, its pro-
ponents took up the argument that its statutory language must be honored.
Indeed, William Thornton urged the House of Commons in 1751, with the
English militia neglected and ineffectual, "Let us no longer acknowledge
the importance of a militia in the preamble of many of our statutes, yet
render this very militia ineffectual by suffering such destructive clauses
to remain, as will reduce the statute itself to a mere form of words, and a
dead letter, to the astonishment of other nations, and the disgrace of our
own." Thornton called on Parliament to "repeal all the present laws con-
cerning the militia." In their place-and in place of "a mercenary army,
that has no motive to defend us, but its pay, and no concern for our liber-
ties"-he urged, "Let us now establish our safety upon a firm foundation,
by passing such a law as will furnish this country with a militia equally
effective, more easily raised, and maintained at a less expense than that
of any other nation of the world. .. ." Thornton, like other advocates of a
reformed English militia, saw such a force as a guarantee against what
"happened in the year 1745," when Jacobite rebels had embarrassed Ed-
inburgh and London.45
Anonymously, Adam Ferguson (or perhaps David Hume) lampooned the
way English "John Bull" had left his Scottish "Sister Peg" disarmed and
continuing,"andwhereasthe laws now in being for the
44. 30 Geo. II, c. 25, Preamble,
regulation the militia are defectiveand ineffectual... ." Robertson,
of Militia Issue, 100-
101. AdamFerguson,An Essay on the Historyof Civil Society,ed. DuncanForbes(1767;
reprintEdinburgh: Edinburgh UniversityPress, 1966), 271. The importanceof the civic
humanisttraditionof virtuein the militia cause is the subjectof Robertson,Militia Issue.
Additional discussioncan be foundin Richard Sher,"Adam
B. Ferguson,AdamSmith,and
the Problemof NationalDefense,"Journal of Modern History61 (1989): 242-43.
45. Citedby Burgh,PoliticalDisquisitions,2: 419-21. Thornton introduced militiabill
a
in 1752andofferedvigoroussupport it in his pamphlet, Counterpoise, being Thoughts
for The
on a Militia and Standing Army (London,1752).

17. 134 LawandHistoryReview,
Spring2004
helpless.Appealingto Johnand"Mrs.Bull,"Peg bemoanedthe declineof
Scottishautonomyand sibling equality:
Youused to call me proud.I wish I may not haveerredon the otherextreme.
When you cease to be proud,I shall not esteem my brotherthe more.But
whatever I
weaknesses mayhave,howcouldyoufora moment
think re-
of
ducingme to the necessityof askingas a favour,whatis the birth-right all
of
mankind,libertyto defendmyself? I was possessed of this liberty,beforeI
entrusted affairsto the management yourservants....It neveroccurred
my of
to me,thatyoumight resume yourself,
perhaps it offering to me.46
without it
For the Scots, left out and looking southwardwith equal measureof
jealousy and suspicion,theirexclusion deniedthem a constitutional right
they hadexpectedin agreeingto the Treatyof Union.Now, Parliament had
deniedthatright.Fifteenyearshadpassedsincethe "Forty-Five,"
arbitrarily
and owing to steps taken"to extinguishevery sparkof disaffectionin the
northern counties,"Scots were entrusted with arms andexpectedto serve
loyally abroad defenseof Britain,butnot at home.Pro-militia
in pamphle-
teer George Dempster wrote that Scots bore "reminding... of the late
conductof the government towardsthe inhabitants the disarmed
of coun-
ties."The "continuance an invidiousdistinction" not bearingarmsin
of of
a Scottishmilitia must end. "WhatScotchmanwould consentto a partial
militia,"he asked, referringto the service of Scots in British wars, "by
whichthosebravemen who havebeen so successfullyemployedin defend-
ing us, are denied armsfor their own defence?"With war ragingagainst
France,Scotlandlackedthe meansto defenditself as invasionloomed.But
the otherlessonof 1745-the threat internal
of insurrection-alsoremained
a sourceof the pro-militia campaign. AdamFergusonraisedthe specterof
anotherrising like thatof 1745 when he observedthat with no militiain
Scotland,"a few Bandittifrom the Mountains, trainedby their Situation
to a warlikeDisposition, might over-runthe Country,and, in a Critical
Time, give the Law to this Nation."47
A Scottishmilitiaact remained patriotic
a cause fromthe 1750sthrough
the 1790s, when the dire pressuresof the NapoleonicWarsfinallyover-
came Englishresistanceandled to the creationof a Scottishmilitia.48Even
46. The History of the Proceedings in the Case of Margaret, Commonly called Peg, only
lawfulSisterto JohnBull, Esq. (London,1760), 79. Richard Sherconvincingly
B. disputes
Hume's authorship in Philosophical Books, 24 (1983): 85-91.
47. [George Dempster,] Reasons for Extending the Militia Acts to the Disarmed Coun-
ties of Scotland (Edinburgh, 1760), 11, 16, 18, 20. Adam Ferguson, Reflections Previous to
the Establishment of a Militia (1756), cited by Richard B. Sher, Church and University in
the Scottish Enlightenment: The Moderate Literati of Edinburgh (Princeton: Princeton Uni-
versityPress, 1985), 221.
48. J. R. Western,"TheFormation the ScottishMilitia in 1797,"ScottishHistorical
of
Review34 (1955): 1-18. 37 Geo. III,c. 103 (1796). Thepreamble this actreads,"Whereas
to

18. The Second Amendment: Missing TransatlanticContext
A 135
as the newly independentstates acrossthe Atlanticwere workingto cre-
ate structures governmentthat would embody rights and protecttheir
of
liberties,therefore,Scots were still campaigningfor a bill thatwould ex-
tendandguarantee themthe rightto beararmsin militiaservice.As would
laterbe the case in the newAmerican states,it was a commonplace Scot-
in
land to declarethat"[a]militiais the naturalstrengthof a free people,"or
to describeit as "the "natural bulwark" a nation.49 influencewas
of The
more thanrhetorical,as important thatmight be.
as
like
"Influence," "context," be one of the most difficult factors to
can
establishin history,especially as a causativelink between ideas and ac-
tions, andwe mustbe carefulto seek deep and underlyingelementsrather
than superficialconnections.Reappraising legacy in Americaof the
the
debates over the union of Scotlandand Englandin the early eighteenth
century,Ned Landsman concedes thatit "appears, the surfaceat least,
on
to havebeen practicallynil."He cautions,however,thatthe important his-
torical question is not one of "immediateramifications," ratherthe
but
demonstrably more significantfact thatAmericanshad to come to terms
with being "provinces an enlargedUnitedKingdom." questionwas
of The
not a simplisticone of obvious cause and effect, as JohnPocock advises:
"TheAmericanRevolutionis not causallya consequenceof the Union of
EnglandandScotland,butit is a consequenceof a politicallogic contained
withinit."50This "political logic"shaped American debatesandraisedmany
of the same concerns.The discursiveand rhetoricalsimilaritiescannotbe
ignored,because both had sufferedsimilargrievancesand were respond-
ing with similarsolutions.
Thesesimilarities-the sharedsuspicionsof provincial Britons--emerge
from the continuingScottish skepticismabout how a militia law would
operatein actualpractice.The disputeover retainingcontroland respon-
sibility in militia affairsgeneratedintractable controversy.Traditionally,
countylieutenants raisedthe militias,butthe abolitionof the ScottishPrivy
it hasbeenfound,fromexperience, thewell ordering disciplining militia
that and the in
Englandand Wales, has essentially contributed the safety of the united kingdom;and
to
whereasit wouldfurther contribute the samepurpose,andtendto repelanyattempt
to which
the enemies of this countrymay maketo effect a descent upon this kingdom,if a well or-
deredanddisciplinedmilitiawereestablished thatpartof the unitedkingdomcalledScot-
in
land;andwhereas lawsin beingfortheregulation thefencible
the of men,or militia,
in
Scotland,are defectiveandineffectual... ."
49. Burgh,PoliticalDisquisitions,2: 395. Edinburgh March31-April2, 1760,
Chronicle,
60, col. 3, reprinting article
an fromtheWestminster
Journal March 1760.
of 22,
50. Ned Landsman, "TheLegacyof BritishUnionfor the NorthAmericanColonies:Pro-
vincialElites andthe Problem Imperial
of Union,"in A Union Empire: PoliticalThought
for
andtheBritishUnionof 1707,ed. JohnRobertson (Cambridge: University
Cambridge Press),
297. J. G. A. Pocock, "Empire, State, and Confederation: Warof AmericanIndepen-
The
dence as a Crisis in MultipleMonarchy," ibid., 338.
in

19. 136 Law and History Review, Spring 2004
Councilin 1708 left a void in the chainof constitutional authority which
by
lieutenancieswere created;not even the Crown,legal opinionheld, could
raise or armmilitiaswithoutsuch officials. GeorgeDempsteremphasized
the availability "manygentlemen undoubted
of of attachment thepresent
to
government, who are both qualifiedand willing to act as militia-officers,"
and whose presence would add "authorityand weight to the cause of
Whiggism."Officialsin Londondisagreed.In the face of Parliament's re-
fusal to yield control to local authority, Burgh voiced the fears of many
Scots when he linked controlover appointments fundingand training.
to
WhenParliament madecentralized controlfromLondona conditionfor a
Scottish militia in 1779 and 1780, the Scots refusedto supportany such
plans.The EnglishMilitiaAct specifiedroyal authority, as Burghhad
but
warned, this "placesit, as everything else is, too muchunderthe powerof
the court."Thoughpreferred the English, centralizedcontrolalarmed
by
the Scots. BurghquotedAndrewFletcherof Saltoun,a vocal Scottishanti-
Unionist, who had insisted at Scotland'slast parliament 1706-7: "The
in
essentialqualityof a militiaconsistentwith freedom,is, Thatthe officers
be named,andpreferred, they,andthe soldiersmaintained, by the
and not
prince but by the people, who send them out."Englishrefusalto yield on
the appointment officershelpeddoom any potentialbill.51
of
The debateover local controlepitomizedthe constitutional between
gulf
Scotlandand England.To the English, accordingto Eliga Gould,Crown
control"represented substantial
a step towardintegrating militiainto
the
the regularforces of the Crown"and increasingHanoverian power.The
Scots long had recognizedthe dangerof centralizedmilitia control.An-
drewFletcher,a leadingopponentof the Union, had warneda half centu-
ry earlierthatScotlandwouldbe treatedas a "conquered province" unless
barredby express curbs on royal power within a constitutional structure
thatJohnRobertsondescribesas "anequal or confederalunion"("a sort
of UnitedProvincesof GreatBritain"). Fletcher proposedat Scotland's last
parliament before Union thatit pass an "Actfor the securityof the king-
dom" specifying twelve "Limitations." Fourof these mentionedmilitary
MilitiaIssue,52. Rosalind
51. Robertson, "TheGovernment theHighlands,
Mitchison, and
1701-1745," in Scotland in the Age of Improvement. Essays in Scottish History in the Eigh-
teenthCentury, N. T. Phillipsonand RosalindMitchison(Edinburgh:
ed. UniversityPress,
40. would
[1970]1996), TheCrown lieutenants thereconstituted
appoint in mili-
Scottish
tia. Dempster,Reasonsfor Extending, 15.Antimilitia
9, legislatorsobjectedto local control
even over the recommendations HenryDundas,the powerfulsolicitorgeneralof Scot-
of
land,dubbed"Henry Ninth,"thata Scottish"melletia"
the wouldhelp stabilizesocietyand
end the massiveemigrationof Scots. Bernard Bailyn, Voyagers the West. Passage in
to A
the Peopling of Americaon the Eve of the Revolution(New York:Knopf, 1986), 46-51.
Burgh,Political Disquisitions,2: 404, 399-400 (quotingFletcher).Robertson, MilitiaIs-
sue, 136-37.

20. The Second Amendment: Missing TransatlanticContext
A 137
affairs, including a denial of Crown authority to maintain a standing army
or make peace and war except by "consent of parliament," or to grant any
"places and offices." One limitation is of particular importance in the
present examination of the right to keep and bear arms: "That all fencible
men of the nation, betwixt sixty and sixteen, be with all diligence possi-
ble armed with bayonets, and firelocks all of a caliber, and continue always
provided in such arms with ammunition suitable."52
Such a militia generated little, if any, serious support, but Fletcher's
demand merits serious attention because it raised an issue fraught with
social, political, and constitutional implications: How inclusive should
militia membership be? Because Fletcher's plan on its surface arguably
it
appearsto supporta universal individual right to bear arms,53 merits closer
contextual study than it has received. Fletcher's militia was to serve as a
bulwark of Scottish liberty, for "[a] good militia ... is the chief part of the
constitution of any free government" and "will always preserve the pub-
lick liberty."But an armed citizenry, by itself, did not constitute the "good
militia" called for. Indeed, it had to be well regulated. Fletcher continued,
"[I]f the militia be not upon the right foot, the liberty of the people must
perish." For this reason, membership in the arms-bearing community re-
quired submission to a grueling regimen of basic training in militia
"camps," so that the militia could be placed "upon the right foot." There,
young men would "be taught the use of all sorts of arms," adhere to a strict
diet, and learn "all christian and moral duties, chiefly to humility, modes-
ty, and the pardon of private injuries," all enforced by "severe and rigor-
ous orders,"including punishments "much more rigorous than those inflict-
ed for the same crimes by the law of the land." "Such a camp," Fletcher
explained, "would be as great a school of virtue as of military discipline.
.." After one or two years of training, militiamen would meet fifty times
a year. Fletcher, therefore, saw the militia as but one part of a comprehen-
sive Scottish nationalist revival, and he remained wary of those who could
not be entrusted with the responsibilities of citizenship. To make an exam-
ple of the most incorrigible vagabonds, in fact, he called for sending sev-
eral hundred "of those villains" to serve in Venetian galleys. Even with the
worst miscreants removed, he lamented the fact that half of Scotland was
controlled by men who "in every thing are more contemptible than the vilest
52. Eliga H. Gould,"ToStrengthen King's Hands:DynasticLegitimacy,
the MilitiaRe-
form and the Idea of NationalUnity, 1745-1760,"HistoricalJournal34 (1991): 329-48.
"Actfor the Securityof the Kingdom," AndrewFletcher,Political Works, JohnRob-
in ed.
ertson (Cambridge: Cambridge UniversityPress, 1997), 139. Robertsondefines "fencible
men"as "thosecapableof bearingarms"(ibid., 139n).
53. As argued, example,by StephenP.Halbrook,
for ThatEveryManBe Armed:TheEvo-
lutionofa ConstitutionalRight,2nded. (Oakland,Cal.:TheIndependent 1994),47.
Institute,

21. 138 Law and History Review, Spring 2004
slaves, except thatthey always carryarms,becausefor the most partthey
live upon robbery."54
for
Support a Scottishmilitiathuscouldnot escapethe problem defin-
of
ing a practicalpublic policy by which membershipshould be limited.55
Turningthe tables on the Stuartsfor "causingseveralGood Subjects,be-
ing Protestants, be Disarmedat the same time, when Papistswereboth
to
Armed and Imployed contraryto Law,"the English Bill of Rights had
specifiedthat only those "Subjectswhich are protestants may haveArms
for theirDefence suitableto the Condition,andas allowedby law."56 Lim-
iting militia membershipto Protestantswith a certainlevel of property
reflectedhatredof Catholicsanddoubtsabouttheirloyaltyto the Revolu-
tionary settlement,but indicated,too, a distrustof the lowest ordersof
society.Indeed,therewere groundsfor the lattersuspicion:the MilitiaAct
of 1757 had ignited riots among the English poor, who saw service as a
hardship as exploitation.The act did not proposeuniversalservicein
and
any case, as it providedfor substitutes be engagedandcappedthe num-
to
ber serving.57
Burgh'sopinionon the composition the militiareflectedthis tradition.
of
He addressed PoliticalDisquisitions the independent of thePeo-
his "to Part
ple of Great-Britain, Ireland,andthe Colonies,"andin themhe articulated
a constitutional for
argument collectiveequalitywithinthe Empirethatin-
cluded the right of the Scots to organize and serve in their own militia.
Scotlandmustbe allowedits own militia,a militiacomposedof as broada
segmentof the population servedin England.Burghdemanded rights
as the
to which all Britonswere entitled."ForeveryBritonis bornwith the heart
54. AndrewFletcher,"ADiscourseof Government Withrelationto Militia's"[1698], in
Political Works, Robertson,24-26. Fletcher,"TwoDiscoursesConcerningthe Affairs
ed.
of Scotland;Writtenin the Year1698,"ibid., 68-69.
55. Adam Smith, for example,appliedhis belief in the superiority the specialization
of
of laborto arguethat"theprogressof manufactures, the improvement theartof war"
and in
madeuniversalmilitiaserviceharmfulto the economy andproduced militaryforce infe-
a
rior to a standing army (An Inquiry into the Nature and Causes of the Wealth of Nations,
ed. R. H. CampbellandAndrewS. Skinner, vols. [Indianapolis:
2 LibertyFund,1981], 2:
689-708).
56. "TheDeclaration the LordsSpiritualand Temporal, CommonsAssembledat
of and
Westrminster,"reprinted in Declaring Rights. A Brief History with Documents, ed. Jack N.
Rakove(Boston:BedfordBooks, 1998), 41-45, with pertinent clauses at 42, 43. Because
the Declaration no constitutional
had force,Parliament to enactits provisionsintolaw,
had
and did so; it did not alterthe languagecited here. 1 Wm. and Mary,sess. 2, c. 2 (1689).
Fearof arms-bearing Catholicsalso infectedthe debateon an Irishmilitia,wherethe inclu-
sion of Catholics was so dreadedthat not until 1793 was a bill approvedto permitthis.
ThomasBartlett, Endto MoralEconomy:
"An The IrishMilitiaDisturbances 1793,"
of Past
and Present 99 (1988): 41-64.
57. 30 Geo. II, c. 25, secs. xvi, xix.

22. The Second Amendment: Missing TransatlanticContext
A 139
of a soldieranda sailorin him,"Burghasserted; "andwantsbutlittle train-
ing to be equal on eitherelement,to any veteranof any country." Though
not callingfor a universal militiacomposedof all able-bodied men, Burgh
emphasizedthe rightof a politicalcommunityto equalitywithinthe con-
stitutional structure therightof the subjectto participate
and fully.ToBurgh,
"a militiais the only naturaldefence of a free countryboth from invasion
and tyranny," it required
but capablewidespread participation it were to
if
be trulyso. In his oppositionto a small, select militia, Burghwas adding
his voice to a call madeby otherwriterswith broadAmericanreadership,
quoting at length from the work of AndrewFletcher,whose militia plan
includedScotlandand called for organizedmilitia service and trainingto
be as broadas policy allowed:"Mr. Fletchergives the plan for a militiafor
Britain..... Thatevery youthof everyrankshouldspendone or two years
in the camp,at his coming of age, andperformmilitaryexercise once ev-
ery week afterwards." Despite Fletcher'sreferenceto "everyyouth of ev-
ery rank,"Burgh wouldlimit serviceto "allmen of property," a "militia
for
consisting of any othersthanthe men of propertyin a countryis no militia;
but a mungrelarmy." this reason,Burghcould stop shortof what we
For
today wouldacknowledgeas trulyuniversalservice and still state,without
contradicting himself, "Thereis no law againsta free subject'sacquiring
any laudableaccomplishment." Onlythose capableof being entrusted with
the dutiesof citizenshipwere entitledto the civic rightto participate, but
all such men mustbe allowedto do so. 58
II. The Scottish Example and the Shared British Tradition
in North America
As one of the many exemplaryhistoriesavailablein the political culture
of the eighteenthcentury,Scotland'sconstitutionalhistoryand its strug-
gle over a militia providedthe framersof the Constitutionand Second
Amendmentwith a cautionarylegacy that appealed to them because it
addressed manyof the sameissues. Reactingto sharedconcerns,theycame
up with similar-and similarlyworded-responses. As framed,therefore,
the SecondAmendment defies easy classificationin suchtwenty-first
cen-
tury terms as "individual" "collective."The differencesbetween such
or
dichotomiesandthe variousways thateighteenth-century rightswere con-
ceived, explains RichardPrimus,"suggestthat the categoriesof modem
analyticrightsphilosophydo not producean adequateframework his- for
toricallyreconstructingconceptions of rightsat the Founding."Grounding
58. Burgh, Political Disquisitions, 3: 336, 360-61; 2:391, 401, 402.

23. 140 Law and History Review, Spring 2004
eighteenth-century rights in the felt necessities of their time, he prefers to
describe them as "oppositional and specific," a concept that suggests that
"the most prominent rights at the Founding were substantially conditioned
by contemporary opposition to specific British practices."59 This formula-
tion is especially apt for appreciating the role of the Scottish example in
the framing of the Second Amendment.
The British government fed the shared fear of a standing army when its
troops began efforts to disarm the Massachusettsmilitias. Almost six months
before the more celebrated raids on Lexington and Concord, British regu-
lars in September 1774 seized arms stored by the province in Cambridgeand
Charlestown.Though thousands of local militia gatheredin Cambridge,New
England's first militia resistance took place in New Hampshire.Angered by
news that the Crown had barredimportsof arms to the province, militia offic-
er John Sullivan led local men in seizing British arms stored at Fort William
and Mary at the mouth of the Piscataqua River on December 14.60
Two weeks after Sullivan's raid, JohnAdams wrote to James Burgh thank-
ing him for the Political Disquisitions the Scot had sent him and praising
its timeliness. "I cannot but think those Disquisitions the best service that a
citizen could render to his country at this great and dangerous crisis," he
wrote. Adams referred explicitly to the Boston Massacre in 1770 and im-
plicitly to the present troubles, claiming that General Sir Thomas Gage "and
all the regiments" then occupying Boston could not crush New England.
After speaking of the nation's resolve to sacrifice its blood, he told Burgh,
"Americawill never submit to the claims of parliament and administration.
New England alone has two hundred thousand fighting men, and all in a
militia, established by law; not exact soldiers, but all used to arms."61
Scotland's experience at the hands of British troops was not far from the
minds of Americans resisting Britain in the 1770s. Denied their own mili-
tia, Scots had been degraded and forced to do the military service of oth-
ers, and became numbered with the hated "Scotch and foreign mercenar-
ies" that Jefferson denounced in drafting the Declaration of Independence,
though he removed the reference when it "excited the ire of a gentleman
or two of that country."62 John Sullivan, appointed a major-general in the
59. Richard Primus, The American Idea of Rights (Cambridge: Cambridge University
Press, 1999), 85, 97, 102-3.
60. Charles P. Whittemore, A General of the Revolution: John Sullivan of New Hampshire
(New York:ColumbiaUniversityPress, 1961), 13.
61. Adamsto Burgh,December28, 1774, Works, 351-52.
9:
to
62. Jefferson Robert Walsh,December 1818,TheWorks Thomas
4, of Jefferson, Paul
ed.
LeicesterFord, 12 vols. (New York:G. P. Putnam's
Sons, 1904-5), 10: 119-20, wherehe
mistakenly CarlL. Becker,TheDec-
recallswriting"Scotchandotherforeignauxiliaries."
laration of Independence. A Study of the History of Political Ideas (New York: Harcourt,
Brace, 1922), 172. Hook, Scotland and America, 71n., posits Witherspoon's influence.

24. The Second Amendment: Missing TransatlanticContext
A 141
Continental Army, joined the list of American "Encouragers" to Burgh's
Philadelphia edition and provided a personal testimonial in the advertis-
ing circulated to promote it. In Boston, Josiah Quincy, Jr., appreciated that
common struggle when he assailed the Boston Port Bill in 1774, praising
"that prince of historians, Dr. Robertson" and citing his History of Scot-
land in arguing for "a well-disciplined militia." Robertson's History of
Scotland had fueled national pride in Scotland and had generated support
for the militia there, and Quincy drew on a shared British experience when
he asked, "Who would be surprised that princes and their subalterns dis-
courage a martial spirit among the people, and endeavor to render useless
and contemptible the militia, when this institution is the natural strength,
and only stable safeguard, of a free country?" James Madison requested
that the work be included among works to be purchased for the Confeder-
ation Congress in 1783. Thomas Jefferson had read Robertson's History
of Scotland as a young man practicing law and continued to recommend
him in his old age. As with other works that exposed human evil, Jeffer-
son appreciated the fact that "when we see or read of any atrocious deed,
we are disgusted with it's deformity and conceive an abhorrence of vice."63
Americans did not forget either history or experience after the war, nor
in the effort to establish a national government. Looking back on England's
efforts to subjugateMassachusetts with regulartroops before Independence,
Elbridge Gerry recalled that Parliament had worked to weaken the colo-
ny's militias. In debate on what became the Second Amendment he remind-
ed Congress,
Whenevergovernment meanto invadethe rightsand libertiesof the people,
theyalwaysattempt to destroythe militia,in orderto raisean armyupontheir
ruins.This was actuallydone by GreatBritainat the commencement the of
late revolution.They used every means in theirpower to preventthe estab-
lishmentof an effective militiato the eastward. The assemblyof Massachu-
setts, seeing the rapidprogressthatadministration were making,endeavored
to counteract them by the organization the militia, but they were always
of
defeatedby the influenceof the crown.64
63. Stewart Brown,"William
J. Robertson(1721-1793) andthe ScottishEnlightenment,"
in William Robertson the Expansionof Empire,ed. StewartJ. Brown(NewYork:Cam-
and
bridgeUniversityPress, 1997), 20-21. JosiahQuincy,Jr.,"Observations the Act of Par-
on
liamentCommonlyCalledthe BostonPortBill; withThoughtson Civil Society andStand-
ing Armies"[Boston, 1774],Memoirof the Life of Josiah Quincy,Junior,of Massachusetts
Bay: 1744-1775, ed. JosiahQuincy,3rded., ed. Eliza SusanQuincy(Boston:Little,Brown,
1875), 303, 338. Journalsof the Continental Congress,1774-1789 editedfrom the Origi-
ed.
nal Records, Worthington Chauncey Print-
Government
Fordet al., 34 vols. (Washington:
ing Office, 1904-37), 24: 83. Jeffersonto RobertSkipwith,August 3, 1771, in ThePapers
of Thomas Jefferson, 1: 76-81; Jefferson to John Minor, Works,August 30, 1814, 11: 424.
64. Creating Bill of Rights:TheDocumentary
the Recordfrom theFirstFederalCongress,
JohnsHopkinsUniversityPress, 1991), 182.
ed. Helen E. Veit et al. (Baltimore:

25. 142 Spring2004
LawandHistoryReview,
Gerry'sconcernsechoed the most prominent fear aboutthe militiasin
the stateratifyingconventionsand in Congress:namely,who wouldstaff,
take responsibility andcontrolthe statemilitias.It reflectedwhatDon
for,
Higginbotham has identifiedas a powerfulconcerncentralto the histori-
cal changes that overtook the new nation. Higginbotham,the dean of
AmericanRevolutionary Warmilitaryhistorians,has shown how impor-
tantit is to recognize,among otherhistoricaldevelopmentsafter 1783,
"the shift from the states' total controlof their militias to the sharingof
thatauthority underthe Constitution, how disturbing development
this was
to the Antifederalists, [and]how JamesMadisondealtwith Antifederalist
concernsin the SecondAmendment. "65 ....
The end of the war,thatis, posed new questionson how to maintain the
continuedvitality of the state militias as meaningfulfactors in a federal
system.JohnSullivan,who became"president" (governor) New Hamp-
of
shire afterthe war,remainedcommittedto the notion of a citizen militia
and servedas its commander, touringthe state and generatingsupport for
it. The leaderof New England'sfirstdefenseof local militiasin 1774,with
independence saw the keeping andbearingof armsas necessaryto the
he
effectivenessof a militiaandsupported statelaw providingarmsto all
the
membersas guaranteeing "wellregulated
a militia."Sullivanknewthatthe
collective power of the militia dependedon individualexertion:"[W]ere
my talentseven equal to those of a Frederick," addressedthe freemen
he
of New Hampshire 1785, "I could do but little towardsforminga well
in
regulatedmilitia,withoutthe countenance aid of the people at large."
and
Bearing armswas an individualact to be exercisedin the state'swell-or-
ganized and disciplinedmilitias, and he repeatedlylinked the two in his
speeches.Bearingarmswithoutthe regulation disciplinethatcamewith
and
grouppractice, he emphasized, failedto servethe purposeof protecting the
gains of the Revolution: "Wehave alreadybravelypurchased Libertyand
Independence,and now make part of an empire where freedom reigns
without controul:but what will our late strugglesavail, if we sufferthe
militaryskill which we have acquired,to expire?"Sullivanwent so far as
to suggestthatschoolboys be instructed "theprofessionof arms,"
in which
shouldbe "taught the purposeof nationaldefence and for the security
for
of dear-bought freedom."66
65. Higginbotham continueshis observation the subjectalso shows"finally,
that how the
issue was gradually resolvedin the firsthalf of the nineteenth thoughthe present
century,"
essay stops shortof thatquestion.Don Higginbotham, "TheFederalized MilitiaDebate:A
NeglectedAspectof SecondAmendment Scholarship," and 3rd
William MaryQuarterly, ser.,
55 (1998): 39-58, with quotation 40.
at
66. Letters and Papers of Major-General John Sullivan, Continental Army, ed. Otis G.
Hammond, HistoricalCollections,13-15, 3 vols. (Concord,1930-39), 3:
New Hampshire
385-86, 407.