Militiamen to maintain possession of firearms in their own homes

 

“[T]he widespread private ownership of firearms suitable for service in the Militia created a peculiar kind of private property that served a public, governmental, and even sovereign function as the means by which the community itself directly exercised the most fundamental and important of all political and legal powers: the Power of the Sword.” 

The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 149 (emphasis supplied).

Also see Regular Armed Forces and Militia FirearmsMilitia: Reliance on the Free Market in ArmsMilitia: Not Part of the Regular Armed Forces of the Union or of the States • National Guard: Not a Militia • Oxymoronic “Unorganized” Militia • Militia: Not Private Associations • “the Militia of the several States”


Militiamen to Maintain Possession of Firearms in Their Own Homes

From the earliest days in America, whether a firearm, ammunition, and accoutrements for use in the Militia were his own personal property (in the case of most able-bodied free men), or public property (in the case of some poor individuals), almost all such equipment was to be maintained at all times in each individual’s personal possession at home, within his own immediate control, not in a governmental magazine, arsenal, armory, or other remote location under someone else’s control. (footnote 1)

In the pre-constitutional period Local governments did maintain their own magazines for storage of firearms and ammunition the public owned. (footnote 2) And, to minimize the danger from conflagrations in Towns largely constructed of wood, and in which open fires were constantly burning as the sources of heat and light, private citizens were required to store excessively large quantities of explosive black powder in public magazines. (footnote 3) But it was always presumed that private powder stored for common safety’s sake in public magazines would be returned to its owners on demand. Indeed, in 1774 patriots were given “reason to apprehend some hostile intention against” Boston, when her military governor, General Thomas Gage, “in a very extraordinary manner”, “forb[ade] the keeper of the magazine at Boston, to deliver out to the owners, the powder, which they had lodged” there. (footnote 4) So, until Gage embarked on a scheme for disarming American patriots, aimed at rendering them helpless against British oppression, the existence and use of public magazines in no way limited the ability of common citizens to retain firearms and sufficient powder in their own homes at all times, in order for them to remain suitably provisioned against every hazard.

  • Militia statutes required citizens to actually possess personally their firearms and ammunition. Six statutes from Rhode Island spanning the course of 136 years—from 1643 to 1779.

    From the earliest days in America, firearms and ammunition were never consigned to public arsenals unless and until public officials deigned to distribute them. Quite the contrary, Rhode Island’s statutes required her citizens to themselves actually possess personally (not simply own titularly) their firearms and ammunition:

    • • [1643] “[E]very man shall have foure pounds of shot lying by him, and two pounds of powder, and to have it in readiness[.] (footnote 1)

    • [1665] “[F]or the farther providing for the defence of the Collony, in having a Magazine or store of armes and amunition, both in pertickelar men’s houses, and alsoe on publicke store in each towne”, “every man in each towne be allwayes furnished with two pound of gunpowder, and fowre pound of lead or bulletts”. (footnote 2)

    • [1677] Individuals within the Militia “from the age of sixteen yeares unto the age of sixty yeares”, not exempted, “shall * * * have one good gun or muskitt fit for service”, one pound of good powder, and thirty bullets at least”. (footnote 3)

    • [1718, 1730, and 1744] “[E]very Listed Soldier of the * * * Militia, shall always be provided with one good Musket, or Fuzee * * * ; also one pound of good Gunpowder, thirty Bullets, fit for his Gun, six good Flints, fit for Service; one good Sword, or Baionet, a Cartouch Box, ready fitted with Cartriges of Gunpowder and Bullets, on the penalty of Three Shillings, for each time he shall be found not provided[.]

      *  *  *  *  *

      “ * * * [A]ll such Persons * * * excus’d from Training, yet shall notwithstanding be provided with the same Arms, Ammunition, &c. as * * * is required of such as are obliged to Train, & that once every year, or oftner * * * , there shall be * * * a Survey and Examination made, whether such Persons are provided as * * * is Required; and all such Persons as shall be found unprovided with such Arms * * * shall pay the Fine of Five-Shillings for each default[.]”(footnote 4)

    • [1766] “[E]very enlisted Soldier of the * * * Militia, shall always be provided with one good Musket or Fuzee * * * , also One Pound of good Gun-Powder, Thirty Bullets fit for his Gun, six good Flints, One good Sword or Bayonet, a Cartouch Box, ready filled with Cartridges of Powder and Ball, under the Penalty of Four Pence for each Article of Accoutrement * * * which he shall be deficient in, for every Time he shall be unprovided therewith[.]

      * * * * *

      “ * * * [A]ll such Persons * * * excused from training, shall,notwithstanding, be provided with the same Arms, Ammunition, &c. as * * * is required of such as are obliged to train. And * * * Twice in every Year, * * * there shall be an Examination and Survey made, whether such Persons are provided as * * * is Required; and all such Persons as shall be found unprovided, shall pay the Fine of Four Pence for each Article of Accoutrement they shall be deficient in[.]” (footnote 5)

    • [1779] “[E]ach and every effective [that is, able-bodied] Man * * * shall provide, and at all times be furnished, at his own Expence (excepting such Persons as the Town Councils * * * shall adjudge unable to purchase the same) with one good Musquet[.]” (footnote 6)

    Footnotes:

    1.) EN-191 — [A General Town Meeting in Portsmouth,] 5th of October, 1643, in Rhode Island Records, Volume 1, at 77 (emphasis supplied). Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 150.

    2.) EN-192 — Acts and Orders of the Generall Assembly, sitting at Newport, May the 3, 1665, in Rhode Island Records, Volume 2, at 117 (emphasis supplied). Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 150.

    3.) EN-193 — Proceedings of the Generall Assembly held for the Collony of Rhode Island and Providence Plantations at Newport, the 1st of May, 1677, in Rhode Island Records, Volume 2, at 570 (emphasis supplied). Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 150.

    4.)  EN-194 — An Act for the Repealing several Laws relating to the Militia within this Colony, and for further Regulation of the same, LAWS Made and Past by the General Assembly of His Majesties Colony of Rhode- Island, and Providence-Plantations, in New-England, begun and Held at Newport, the Seventh Day of May, 1718, and Continued by Adjournments to the Ninth Day of September following, in Public Laws of Rhode Island, 1719, at 87, 88; in Public Laws of Rhode Island, 1730, at 93, 94; and in Public Laws of Rhode Island, 1744, at 67, 69. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 150.

    5.) EN-195 — An ACT, regulating the Militia in this Colony, part of An ACT, establishing the Revisement of the Laws of this Colony, and for the putting the same in Force, in A LAW, Made and passed at the General Assembly of the Colony of Rhode-Island and Providence Plantations, held at Providence on the First Monday in December, 1766, in Public Laws of Rhode Island, 1767, at 182, 184-185. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 151.

    6.) EN-196 — An ACT for the better forming, regulating and conducting the military Force of this State, AT the GENERAL ASSEMBLY of the Governor and Company of the State of Rhode-Island, and Providence-Plantations, begun and holden at South-Kingstown, within and for the State aforesaid, on the last Monday in October, One Thousand Seven Hundred and Seventy-nine, in Rhode Island Acts and Resolves, Volume 10 [12], at {31-32} (emphasis supplied). Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 151.

  • To have their firearms and ammunition close at hand, under their own control, was a practical necessity, because Militiamen were required to appear for training and service in the field completely equipped in every particular. Ten statutes from Rhode Island spanning the course of 141 years—from 1640 to 1781.

    To have their firearms and ammunition close at hand, under their own control, was a practical necessity, because Militiamen were required to appear for training and service in the field completely equipped in every particular:

    • • [1640] “[A]ll Men allowed and assigned to beare armes, shall make their personall appearance completely armed with Muskett and all its furniture * * * on such dayes as they are appointed to Traine.” (footnote 1)

    • • [1643] “[E]very man do come armed unto the [Town] meeting upon every sixth day.” (footnote 2)

    • • [1664] “[T]he people listed to trayne” are “all * * * required * * * to appeare in armes, compleat[.]” (footnote 3)

    • • [1677] “[T]he * * * inhabitants * * * are * * * strictly required and commanded to make their personall appearance compleat in their armes[.]” (footnote 4)

    •  [1699, 1701, and 1705] Every “person * * * listed” in the Militia must “appear complete in arms * * * with a good or sufficient muskett or fuse, and sword or bagganett, cotouch box or bandaleers, with twelve bullets, fit for his piece, half a pound of powder, six good flints”. (footnote 5)

    • • [1718, 1730, and 1744] “[E]very Enlisted Person [in the Militia]” must “make his Personal appearance Accoutred” with “one good Musket, or Fuzee * * * also one pound of good Gunpowder, thirty Bullets, fit for his Gun, six good Flints, fit for Service; one good Sword, or Baionet, a Cartouch Box, ready filled with Cartriges of Gunpowder and Bullets”. (footnote 6)

    • • [1766] “[E]very enlisted Person [in the Militia]” shall “make his personal appearance, accoutred” with “One good Musket or Fuzee * * * also one Pound of good Gun-Powder, Thirty Bullets fit for his Gun, Six good Flints, One good Sword or Bayonet, a Cartouch Box, ready filled with Cartridges of Powder and Ball”. (footnote 7)

    • • [1777] “[E]ach and every person by law obliged to bear arms * * * , when duly notified, and called out to duty, shall * * * appear in person, completely equipped with arms and accoutrements[.]” (footnote 8)

    • • [1779] “[I]n Cases of general Alarm” every “Officer, non- commissioned Officer or Private [of the Militia], shall * * * appear[ ] at the Alarm-Post * * * armed and accoutred”, or “shall * * * appear[ ], armed, accoutred, and provided * * * at the Time and Place of Rendezvous”. (footnote 9)

    • • [1781] “[E]very Person, liable by Law to do military Duty * * * shall * * * make his personal Appearance when duly warned, accoutred” with “a good Gun, being his own Property, * * * a Bayonet * * * , a Ram-Rod * * * , a Wormer * * * , a Priming-Wire * * * , Three good Flints”. (footnote 10)

    Footnotes:

    1.) EN-197 — At the Generall Courte Held at Portsmouth on the 6th of August, 1640, in Rhode Island Records, Volume 1, at 104 (emphasis supplied). Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 152.

    2.) EN-198 — At a Generall Towne Meetinge at Portsmouth, 1st of March, 1643, in Rhode Island Records, Volume 1, at 79 (emphasis supplied). Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 152.

    3.) EN-199 — Proceedings of a Meetinge of the Generall Assembly, May the fowerth, 1664, at Newport, in Rhode Island Records, Volume 2, at 52 (emphasis supplied). Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 152.

    4.) EN-200 — At the Generall Assembly and Election held in his Majesty’s name, May the 2d, 1677, in Rhode Island Records, Volume 2, at 569 (emphasis supplied). Accord, Proceedings of the Generall Assembly held for the Collony of Rhode Island and Providence Plantations at Newport, the 1st of May, 1677, in Rhode Island Records, Volume 2, at 576 (emphasis supplied). Also seeThe Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 152.

    5.) EN-201 — An Act for the better regulating the militia, and for punishing offenders as shall not conform to the law thereunto relating, At the Generall Assembly and Election held for the Collony at Newport, the 7th of May, 1701, in Rhode Island Records, Volume 3, at 430-431 (emphasis supplied). This statute is dated “1699” in LAWS AND ACTS OF RHODE ISLAND, AND PROVIDENCE PLANTATIONS Made from the First Settlement in 1636 to 1705, at 92, reprinted in J.D. in Cushing, Editor, The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations (Wilmington, Delaware: M. Glazier, 1977), at 107. Reprinted from a compilation dated “1705”, it appears in Military Obligation, Rhode Island, at 37. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 152.

    6.) EN-202 — An Act for the Repealing several Laws relating to the Militia within this Colony, and for further Regulation of the same, LAWS Made and Past by the General Assembly of His Majesties Colony of Rhode- Island, and Providence-Plantations, in New-England, begun and Held at Newport, the Seventh Day of May, 1718, and Continued by Adjournments to the Ninth Day of September following, in Public Laws of Rhode Island, 1719, at 87-88 (emphasis supplied); in Public Laws of Rhode Island, 1730, at 93; and in Public Laws of Rhode Island, 1744, at 67-68. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 152.

    7.) EN-203 — An ACT, regulating the Militia in this Colony, part of An ACT, establishing the Revisement of the Laws of this Colony, and for the putting the same in Force, in A LAW, Made and passed at the General Assembly of the Colony of Rhode-Island and Providence Plantations, held at Providence on the First Monday in December, 1766, in Public Laws of Rhode Island, 1767, at 182-183 (emphasis supplied). Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 152.

    8.) EN-204 — Proceedings of the General Assembly, held for the State of Rhode Island and Providence Plantations, at Providence, on the fourth Monday in March, 1777, in Rhode Island Records, Volume 8, at 181 (emphasis supplied). Accord, At the General Assembly of the Governor and Company of the State of Rhode-Island and Providence Plantations, begun and holden (in Consequence of Warrants issued by his Excellency the Governor) at Providence, within and for the State aforesaid, on Monday the Seventh Day of July, One Thousand Seven Hundred and Seventy-seven, in Rhode Island Acts and Resolves, Volume 9 [10], at {6} (“either by himself or a good able-bodied and suitable Person in his Stead”); and Proceedings of the General Assembly, held for the State of Rhode Island and Providence Plantations, at Providence, on Monday, the 7th day of July, 1777, in Rhode Island Records, Volume 8, at 277 (same). Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 152.

    9.) EN-205 — An ACT for the better forming, regulating and conducting the military Force of this State, AT the GENERAL ASSEMBLY of the Governor and Company of the State of Rhode-Island, and Providence-Plantations, begun and holden at South-Kingstown, within and for the State aforesaid, on the last Monday in October, One Thousand Seven Hundred and Seventy-nine, in Rhode Island Acts and Resolves, Volume 10 [12], at {36-37} (emphasis supplied). Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 152.

    10.) EN-206 — An ACT in Addition to, and Amendment of, an Act, passed in October, A.D. 1779, entituled, “An Act for the better forming, regulating and conducting, the Military Force of this State”, At the General Assembly of the Governor and Company of the State of Rhode-Island and Providence-Plantations, begun and holden, by Adjournment, at South-Kingstown, within and for the said State, on the Third Monday in March, One Thousand Seven Hundred and Eighty-one, in Rhode Island Acts and Resolves, Volume 11 [14], at {51-52} (emphasis supplied). Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 152.

If members of the Militia had not kept their own firearms, ammunition, and accoutrements in their own homes, Rhode Island would have been patently unjust to fine them, as she did, for reporting to Militia service without that equipment. (footnote 5)

Firearms privately owned became the most important of all property, private or public, because in the final analysis the security of all other property depended upon them.

  • Footnotes

    1.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 149.

    2.) Id.

    3.) Id.

    4.) Joseph Warren, Suffolk Resolves (6 September 1774), ¶ 9, adopted by the Continental Congress on 17 September 1774, in Journals of the Continental Congress, ante note 42, Volume I (5 September to 26 October 1774), at 31-40. On the significance of the Suffolk Resolves, see, e.g., T.H. Breen, American Insurgents, American Patriots: The Revolution of the People (New York, New York: Hill and Wang, 2010), at 130-156.

    5.) See Id. at 1, page 153.