[Vision2020] And just something to think about......

[Wayne Price]

This was sent to me by someone that I hold in high regards and often  
disagree with, but listen to and respect their opinions.


The American Revolution against British Gun Control

By David B. Kopel*

Administrative and Regulatory Law News (American Bar Association).  
Vol. 37, no. 4, Summer 2012. More by Kopel on the right to arms in the  
Founding Era.

This Article reviews the British gun control program that precipitated  
the American Revolution: the 1774 import ban on firearms and  
gunpowder; the 1774-75 confiscations of firearms and gunpowder; and  
the use of violence to effectuate the confiscations. It was these  
events that changed a situation of political tension into a shooting  
war. Each of these British abuses provides insights into the scope of  
the modern Second Amendment.

Furious at the December 1773 Boston Tea Party, Parliament in 1774  
passed the Coercive Acts. The particular provisions of the Coercive  
Acts were offensive to Americans, but it was the possibility that the  
British might deploy the army to enforce them that primed many  
colonists for armed resistance. The Patriots of Lancaster County,  
Pennsylvania, resolved: “That in the event of Great Britain attempting  
to force unjust laws upon us by the strength of arms, our cause we  
leave to heaven and our rifles.” A South Carolina newspaper essay,  
reprinted in Virginia, urged that any law that had to be enforced by  
the military was necessarily illegitimate.

The Royal Governor of Massachusetts, General Thomas Gage, had  
forbidden town meetings from taking place more than once a year. When  
he dispatched the Redcoats to break up an illegal town meeting in  
Salem, 3000 armed Americans appeared in response, and the British  
retreated. Gage’s aide John Andrews explained that everyone in the  
area aged 16 years or older owned a gun and plenty of gunpowder.

Military rule would be difficult to impose on an armed populace. Gage  
had only 2,000 troops in Boston. There were thousands of armed men in  
Boston alone, and more in the surrounding area. One response to the  
problem was to deprive the Americans of gunpowder.

Modern “smokeless” gunpowder is stable under most conditions. The  
“black powder” of the 18th Century was far more volatile. Accordingly,  
large quantities of black powder were often stored in a town’s “powder  
house,” typically a reinforced brick building. The powder house would  
hold merchants’ reserves, large quantities stored by individuals, as  
well as powder for use by the local militia. Although colonial laws  
generally required militiamen (and sometimes all householders, too) to  
have their own firearm and a minimum quantity of powder, not everyone  
could afford it. Consequently, the government sometimes supplied  
“public arms” and powder to individual militiamen. Policies varied on  
whether militiamen who had been given public arms would keep them at  
home. Public arms would often be stored in a special armory, which  
might also be the powder house.

Before dawn on September 1, 1774, 260 of Gage’s Redcoats sailed up the  
Mystic River and seized hundreds of barrels of powder from the  
Charlestown powder house.

The “Powder Alarm,” as it became known, was a serious provocation. By  
the end of the day, 20,000 militiamen had mobilized and started  
marching towards Boston. In Connecticut and Western Massachusetts,  
rumors quickly spread that the Powder Alarm had actually involved  
fighting in the streets of Boston. More accurate reports reached the  
militia companies before that militia reached Boston, and so the war  
did not begin in September. The message, though, was unmistakable: If  
the British used violence to seize arms or powder, the Americans would  
treat that violent seizure as an act of war, and would fight. And that  
is exactly what happened several months later, on April 19, 1775.

Five days after the Powder Alarm, on September 6, the militia of the  
towns of Worcester County assembled on the Worcester Common. Backed by  
the formidable array, the Worcester Convention took over the reins of  
government, and ordered the resignations of all militia officers, who  
had received their commissions from the Royal Governor. The officers  
promptly resigned and then received new commissions from the Worcester  
Convention.

That same day, the people of Suffolk County (which includes Boston)  
assembled and adopted the Suffolk Resolves. The 19-point Resolves  
complained about the Powder Alarm, and then took control of the local  
militia away from the Royal Governor (by replacing the Governor’s  
appointed officers with officers elected by the militia) and resolved  
to engage in group practice with arms at least weekly.

The First Continental Congress, which had just assembled in  
Philadelphia, unanimously endorsed the Suffolk Resolves and urged all  
the other colonies to send supplies to help the Bostonians.

Governor Gage directed the Redcoats to begin general, warrantless  
searches for arms and ammunition. According to the Boston Gazette, of  
all General Gage’s offenses, “what most irritated the People” was  
“seizing their Arms and Ammunition.”

When the Massachusetts Assembly convened, General Gage declared it  
illegal, so the representatives reassembled as the “Provincial  
Congress.” On October 26, 1774, the Massachusetts Provincial Congress  
adopted a resolution condemning military rule, and criticizing Gage  
for “unlawfully seizing and retaining large quantities of ammunition  
in the arsenal at Boston.” The Provincial Congress urged all militia  
companies to organize and elect their own officers. At least a quarter  
of the militia (the famous Minute Men) were directed to “equip and  
hold themselves in readiness to march at the shortest notice.” The  
Provincial Congress further declared that everyone who did not already  
have a gun should get one, and start practicing with it diligently.

In flagrant defiance of royal authority, the Provincial Congress  
appointed a Committee of Safety and vested it with the power to call  
forth the militia. The militia of Massachusetts was now the instrument  
of what was becoming an independent government of Massachusetts.

Lord Dartmouth, the Royal Secretary of State for America, sent Gage a  
letter on October 17, 1774, urging him to disarm New England. Gage  
replied that he would like to do so, but it was impossible without the  
use of force. After Gage’s letter was made public by a reading in the  
British House of Commons, it was publicized in America as proof of  
Britain’s malign intentions.

Two days after Lord Dartmouth dispatched his disarmament  
recommendation, King George III and his ministers blocked importation  
of arms and ammunition to America. Read literally, the order merely  
required a permit to export arms or ammunition from Great Britain to  
America. In practice, no permits were granted.

Meanwhile, Benjamin Franklin was masterminding the surreptitious  
import of arms and ammunition from the Netherlands, France, and Spain.

The patriotic Boston Committee of Correspondence learned of the arms  
embargo and promptly dispatched Paul Revere to New Hampshire, with the  
warning that two British ships were headed to Fort William and Mary,  
near Portsmouth, New Hampshire, to seize firearms, cannons, and  
gunpowder. On December 14, 1774, 400 New Hampshire patriots  
preemptively captured all the material at the fort. A New Hampshire  
newspaper argued that the capture was prudent and proper, reminding  
readers that the ancient Carthaginians had consented to “deliver up  
all their Arms to the Romans” and were decimated by the Romans soon  
after.

In Parliament, a moderate minority favored conciliation with America.  
Among the moderates was the Duke of Manchester, who warned that  
America now had three million people, and most of them were trained to  
use arms. He was certain they could produce a stronger army than Great  
Britain.

The Massachusetts Provincial Congress offered to purchase as many arms  
and bayonets as could be delivered to the next session of the  
Congress. Massachusetts also urged American gunsmiths “diligently to  
apply themselves” to making guns for everyone who did not already have  
a gun. A few weeks earlier, the Congress had resolved: “That it be  
strongly recommended, to all the inhabitants of this colony, to be  
diligently attentive to learning the use of arms . . . .”

Derived from political and legal philosophers such as John Locke, Hugo  
Grotius, and Edward Coke, the ideology underlying all forms of  
American resistance was explicitly premised on the right of self- 
defense of all inalienable rights; from the self-defense foundation  
was constructed a political theory in which the people were the  
masters and government the servant, so that the people have the right  
to remove a disobedient servant.

The British government was not, in a purely formal sense, attempting  
to abolish the Americans’ common law right of self-defense. Yet in  
practice, that was precisely what the British were attempting. First,  
by disarming the Americans, the British were attempting to make the  
practical exercise of the right of personal self-defense much more  
difficult. Second, and more fundamentally, the Americans made no  
distinction between self-defense against a lone criminal or against a  
criminal government. To the Americans, and to their British Whig  
ancestors, the right of self-defense necessarily implied the right of  
armed self-defense against tyranny.

The troubles in New England inflamed the other colonies. Patrick  
Henry’s great speech to the Virginia legislature on March 23, 1775,  
argued that the British plainly meant to subjugate America by force.  
Because every attempt by the Americans at peaceful reconciliation had  
been rebuffed, the only remaining alternatives for the Americans were  
to accept slavery or to take up arms. If the Americans did not act  
soon, the British would soon disarm them, and all hope would be lost.  
“The millions of people, armed in the holy cause of liberty, and in  
such a country as that which we possess, are invincible by any force  
which our enemy can send against us,” he promised.

The Convention formed a committee—including Patrick Henry, Richard  
Henry Lee, George Washington, and Thomas Jefferson—“to prepare a plan  
for the embodying, arming, and disciplining such a number of men as  
may be sufficient” to defend the commonwealth. The Convention urged  
“that every Man be provided with a good Rifle” and “that every  
Horseman be provided . . . with Pistols and Holsters, a Carbine, or  
other Firelock.” When the Virginia militiamen assembled a few weeks  
later, many wore canvas hunting shirts adorned with the motto “Liberty  
or Death.”

In South Carolina, patriots established a government, headed by the  
“General Committee.” The Committee described the British arms embargo  
as a plot to disarm the Americans in order to enslave them. Thus, the  
Committee recommended that “all persons” should “immediately” provide  
themselves with a large quantity of ammunition.

Without formal legal authorization, Americans began to form  
independent militia, outside the traditional chain of command of the  
royal governors. In Virginia, George Washington and George Mason  
organized the Fairfax Independent Militia Company. The Fairfax  
militiamen pledged that “we will, each of us, constantly keep by us” a  
firelock, six pounds of gunpowder, and twenty pounds of lead. Other  
independent militia embodied in Virginia along the same model.  
Independent militia also formed in Connecticut, Rhode Island, New  
Hampshire, Maryland, and South Carolina, choosing their own officers.

John Adams praised the newly constituted Massachusetts militia,  
“commanded through the province, not by men who procured their  
commissions from a governor as a reward for making themselves pimps to  
his tools.”

The American War of Independence began on April 19, 1775, when 700  
Redcoats under the command of Major John Pitcairn left Boston to seize  
American arms at Lexington and Concord.

The militia that assembled at the Lexington Green and the Concord  
Bridge consisted of able-bodied men aged 16 to 60. They supplied their  
own firearms, although a few poor men had to borrow a gun. Warned by  
Paul Revere and Samuel Dawes of the British advance, the young women  
of Lexington assembled cartridges late into the evening of April 18.

At dawn, the British confronted about 200 militiamen at Lexington.  
“Disperse you Rebels—Damn you, throw down your Arms and disperse!”  
ordered Major Pitcairn. The Americans were quickly routed.

With a “huzzah” of victory, the Redcoats marched on to Concord, where  
one of Gage’s spies had told him that the largest Patriot reserve of  
gunpowder was stored. At Concord’s North Bridge, the town militia met  
with some of the British force, and after a battle of two or three  
minutes, drove off the British.

Notwithstanding the setback at the bridge, the Redcoats had sufficient  
force to search the town for arms and ammunition. But the main powder  
stores at Concord had been hauled to safety before the Redcoats arrived.

When the British began to withdraw back to Boston, things got much  
worse for them. Armed Americans were swarming in from nearby towns.  
They would soon outnumber the British 2:1. Although some of the  
Americans cohered in militia units, a great many fought on their own,  
taking sniper positions wherever opportunity presented itself. Only  
British reinforcements dispatched from Boston saved the British  
expedition from annihilation—and the fact that the Americans started  
running out of ammunition and gun powder.

One British officer reported: “These fellows were generally good  
marksmen, and many of them used long guns made for Duck-Shooting.” On  
a per-shot basis, the Americans inflicted higher casualties than had  
the British regulars.

That night, the American militiamen began laying siege to Boston,  
where General Gage’s standing army was located. At dawn, Boston had  
been the base from which the King’s army could project force into New  
England. Now, it was trapped in the city, surrounded by people in arms.

Two days later in Virginia, royal authorities confiscated 20 barrels  
of gunpowder from the public magazine in Williamsburg and destroyed  
the public firearms there by removing their firing mechanisms. In  
response to complaints, manifested most visibly by the mustering of a  
large independent militia led by Patrick Henry, Governor Dunmore  
delivered a legal note promising to pay restitution.

At Lexington and Concord, forcible disarmament had not worked out for  
the British. So back in Boston, Gage set out to disarm the Bostonians  
a different way.

On April 23, 1775, Gage offered the Bostonians the opportunity to  
leave town if they surrendered their arms. The Boston Selectmen voted  
to accept the offer, and within days, 2,674 guns were deposited, one  
gun for every two adult male Bostonians.

Gage thought that many Bostonians still had guns, and he refused to  
allow the Bostonians to leave. Indeed, a large proportion of the  
surrendered guns were “training arms”—large muskets with bayonets,  
that would be difficult to hide. After several months, food shortages  
in Boston convinced Gage to allow easier emigration from the city.

Gage’s disarmament program incited other Americans to take up arms.  
Benjamin Franklin, returning to Philadelphia after an unsuccessful  
diplomatic trip to London, “was highly pleased to find the Americans  
arming and preparing for the worst events.”

The government in London dispatched more troops and three more  
generals to America: William Howe, Henry Clinton, and John Burgoyne.  
The generals arrived on May 25, 1775, with orders from Lord Dartmouth  
to seize all arms in public armories, or which had been “secretly  
collected together for the purpose of aiding Rebellions.”

The war underway, the Americans captured Fort Ticonderoga in upstate  
New York. At the June 17 Battle of Bunker Hill, the militia held its  
ground against the British regulars and inflicted heavy casualties,  
until they ran out of gunpowder and were finally driven back. (Had  
Gage not confiscated the gunpowder from the Charleston Powder House  
the previous September, the Battle of Bunker Hill probably would have  
resulted in an outright defeat of the British.)

On June 19, Gage renewed his demand that the Bostonians surrender  
their arms, and he declared that anyone found in possession of arms  
would be deemed guilty of treason.

Meanwhile, the Continental Congress had voted to send ten companies of  
riflemen from Pennsylvania, Maryland, and Virginia to aid the  
Massachusetts militia.

On July 6, 1775, the Continental Congress adopted the Declaration of  
Causes and Necessity of Taking Up Arms, written by Thomas Jefferson  
and the great Pennsylvania lawyer John Dickinson. Among the grievances  
were General Gage’s efforts to disarm the people of Lexington,  
Concord, and Boston.

Two days later, the Continental Congress sent an open letter to the  
people of Great Britain warning that “men trained to arms from their  
Infancy, and animated by the Love of Liberty, will afford neither a  
cheap or easy conquest.”

The Swiss immigrant John Zubly, who was serving as a Georgia delegate  
to the Continental Congress, wrote a pamphlet entitled Great Britain’s  
Right to Tax . . . By a Swiss, which was published in London and  
Philadelphia. He warned that “in a strong sense of liberty, and the  
use of fire-arms almost from the cradle, the Americans have vastly the  
advantage over men of their rank almost every where else.” Indeed,  
children were “shouldering the resemblance of a gun before they are  
well able to walk.” “The Americans will fight like men, who have  
everything at stake,” and their motto was “DEATH OR FREEDOM.” The town  
of Gorham, Massachusetts (now part of the State of Maine), sent the  
British government a warning that even “many of our Women have been  
used to handle the Cartridge and load the Musquet.”

It was feared that the Massachusetts gun confiscation was the  
prototype for the rest of America. For example, a newspaper article  
published in three colonies reported that when the new British  
generals arrived, they would order everyone in America “to deliver up  
their arms by a certain stipulated day.”

The events of April 19 convinced many more Americans to arm themselves  
and to embody independent militia. A report from New York City  
observed that “the inhabitants there are arming themselves . . .  
forming companies, and taking every method to defend our rights. The  
like spirit prevails in the province of New Jersey, where a large and  
well disciplined militia are now fit for action.”

In Virginia, Lord Dunmore observed: “Every County is now Arming a  
Company of men whom they call an independent Company for the avowed  
purpose of protecting their Committee, and to be employed against  
Government if occasion require.” North Carolina’s Royal Governor  
Josiah Martin issued a proclamation outlawing independent militia, but  
it had little effect.

A Virginia gentleman wrote a letter to a Scottish friend explaining in  
America:

We are all in arms, exercising and training old and young to the use  
of the gun. No person goes abroad without his sword, or gun, or  
pistols. . . . Every plain is full of armed men, who all wear a  
hunting shirt, on the left breast of which are sewed, in very legible  
letters, “Liberty or Death.”

The British escalated the war. Royal Admiral Samuel Graves ordered  
that all seaports north of Boston be burned.

When the British navy showed up at what was then known as Falmouth,  
Massachusetts (today’s Portland, Maine), the town attempted to  
negotiate. The townspeople gave up eight muskets, which was hardly  
sufficient, and so Falmouth was destroyed by naval bombardment.

The next year, the 13 Colonies would adopt the Declaration of  
Independence. The Declaration listed the tyrannical acts of King  
George III, including his methods for carrying out gun control: “He  
has plundered our seas, ravaged our Coasts, burnt our Towns, and  
destroyed the Lives of our people.”

As the war went on, the British always remembered that without gun  
control, they could never control America. In 1777, with British  
victory seeming likely, Colonial Undersecretary William Knox drafted a  
plan entitled “What Is Fit to Be Done with America?” To ensure that  
there would be no future rebellions, “[t]he Militia Laws should be  
repealed and none suffered to be re-enacted, & the Arms of all the  
People should be taken away, . . . nor should any Foundery or  
manufactuary of Arms, Gunpowder, or Warlike Stores, be ever suffered  
in America, nor should any Gunpowder, Lead, Arms or Ordnance be  
imported into it without Licence . . . .”

To the Americans of the Revolution and the Founding Era, the theory of  
some late-20th Century courts that the Second Amendment is a  
“collective right” and not an “individual right” might have seemed  
incomprehensible. The Americans owned guns individually, in their  
homes. They owned guns collectively, in their town armories and powder  
houses. They would not allow the British to confiscate their  
individual arms, nor their collective arms; and when the British tried  
to do both, the Revolution began. The Americans used their individual  
arms and their collective arms to fight against the confiscation of  
any arms. Americans fought to provide themselves a government that  
would never perpetrate the abuses that had provoked the Revolution.

What are modern versions of such abuses? The reaction against the 1774  
import ban for firearms and gunpowder (via a discretionary licensing  
law) indicates that import restrictions are unconstitutional if their  
purpose is to make it more difficult for Americans to possess guns.  
The federal Gun Control Act of 1968 prohibits the import of any  
firearm that is not deemed “sporting” by federal regulators. That  
import ban seems difficult to justify based on the historical record  
of 1774-76.

Laws disarming people who have proven themselves to be a particular  
threat to public safety are not implicated by the 1774-76 experience.  
In contrast, laws that aim to disarm the public at large are precisely  
what turned a political argument into the American Revolution.

The most important lesson for today from the Revolution is about  
militaristic or violent search and seizure in the name of disarmament.  
As Hurricane Katrina bore down on Louisiana, police officers in St.  
Charles Parish confiscated firearms from people who were attempting to  
flee. After the hurricane passed, officers went house to house in New  
Orleans, breaking into homes and confiscating firearms at gunpoint.  
The firearms seizures were flagrantly illegal under existing state  
law. A federal district judge soon issued an order against the  
confiscation, ordering the return of the seized guns.

When there is genuine evidence of potential danger—such as evidence  
that guns are in the possession of a violent gang—then the Fourth  
Amendment properly allows no-knock raids, flash-bang grenades, and  
similar violent tactics to carry out a search. Conversely, if there is  
no real evidence of danger—for example, if it is believed that a  
person who has no record of violence owns guns but has not registered  
them properly—then militaristically violent enforcement of a search  
warrant should never be allowed. Gun ownership simpliciter ought never  
to be a pretext for government violence. The Americans in 1775 fought  
a war because the king did not agree.

* Research Director, Independence Institute, and Adjunct Professor of  
Advanced Constitutional Law, Denver University, Sturm College of Law.  
This is article is adapted from How theBritish Gun Control Program  
Precipitated the American Revolution, 6 Charleston L. Rev. 283 (2012),  
available at http://ssrn.com/abstract=1967702.
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