Gun Regulation at the Founding
Gun control is hardly a modern invention.
The Second Amendment itself articulates “a well regulated”
right within the context of the existing militia system. This
included requiring citizens to muster or face stiff penalties. All
of this militia regulation allowed government to track who had
States also commonly prohibited the use of firearms on occasions and in certain locations.
13 In addition, during the early
Republic, just because a man owned his firearm and had the
right to bear it did not necessarily mean that he had an unfettered right to “keep” it in his house. Numerous states and cities
had regulations on how to store firearms and especially gunpowder, most of which a man had to store in a safe public magazine.
14 These gun regulations made sense, given the inherently
unstable nature of firearms at the time. Gunpowder, which
we today call “black powder” to distinguish it from modern
“smokeless” and more stable powder, could blow up with a
spark or even static electricity.
7. One possible exception was
Daniel Morgan’s brilliant victory at
the Battle of Cowpens, but that did
not happen until Jan. 17, 1781.
Through good leadership and a
smart battle plan that made the
militia’s weakness into a strength,
Morgan beat the British under
Banastre Tarleton. What he did was
to ask his militia to fire “two shots”
Pictures 2000). The real history of the Battle of Cowpens is
actually far more interesting than the movie’s presentation.
But Jason Isaacs is well cast as Tarleton and Mel Gibson’s
nemesis even though in real life Tarleton did not die in the
battle and went on to serve in the British Parliament.
9. A Minuteman
Ralph Waldo Emerson’s poem “Concord
Hymn” (1837) helped make the Minuteman
an American icon. It commemorates the
Battle of Lexington and Concord (April 19,
1775), the first fight of the American
Revolution. The statue by Daniel Chester
French has Emerson’s first stanza inscribed
at its base:
By the rude bridge that arched the flood,
Their flag to April’s breeze unfurled,
Here once the embattled farmers stood,
And fired the shot heard round the world.
The “shot heard round the world” became
the description of the beginning of the
Minuteman is a
U.S. nuclear missile.
As of 2008, it is
the only land-based
ICBM in service in
the United States.
Again, not even the
NRA argues that an individual can
own one of these, but
would it not be the logi-
cal extension of the Second
Ralph Waldo Emerson
(May 25, 1803–April
27, 1882) was an
and leader of the
movement in the early
19th century. Emerson
gave a public lecture
in Washington, DC on
Jan. 31, 1862, and
declared, “The South
calls slavery an institution … . I call it destitution … . Emancipation
is the demand of
11. The wife of Nathan Barrett, captain of one of Concord’s militia companies, spotted one of
her husband’s men going home before the fight was over stating he was “feeling ill.” She
told him not to leave with his gun. He would not give it up and ran away when she tried to get it.
Discussed in ROBERT A. GROSS, THE MINUTEMEN AND THEIR WORLD 126 (1976) cited in Churchill, Gun
Regulation, at 139. This story shows that the gun was valuable property. See Konig, Arms and the
Man (challenging Churchill’s minuteman story as a basis for the individual rights argument).
12. See generally Cornell &
DeDino at 502–05, noting
that “a variety of gun regulations were on the books
when individual states
adopted their arms-bearing
provisions and when the
Second Amendment was
adopted. In the years after
the Second Amendment, the
individual states adopted
even more stringent types of
regulations.” See also SAUL
CORNELL, A WELL-REGULATED
MILITIA: THE FOUNDING FATHERS AND THE ORIGINS OF GUN CONTROL IN EARLY AMERICA (2006) noting that
the right to bear arms was tied to military service and that the Second Amendment was born of the
Founders’ fear of a standing army.
13. “In reality, the decades after ratification of the Second Amendment saw increased, not
Decreased, levels of regulation.” Cornell & DeDino at 505.
14. Storing Powder
The statutes provide for the safe storage and transport of gun-
powder by limiting the amount of gunpowder a person could
possess, usually to around 20 to 30 pounds. Ordinances like
that of Carlisle, Pa., proscribed keeping gunpowder “in any house, shop, cellar, store or
other place within the said borough.” The powder was to be kept “in the highest story of
the house … unless it be at least fifty yards from any dwelling house.” New York law
required separating gunpowder “into four stone jugs or tin canisters, which shall not con-
tain more than seven pounds each.” Cornell & DeDino at 511. The early American regula-
tions allowed people to own quantities of gunpowder but they could only “keep” a small
amount in their homes. The owner had to pay to keep the rest in a public magazine and
regulations specified the manner of transportation and storage. Cornell & DeDino at
511–12. Given this history, the Supreme Court’s striking down the requirements that guns
have trigger locks seems out of line.
8. George Washington on the militia: They “come in you
cannot tell how, go you cannot tell when, and act you
cannot tell where, consume your provisions, exhaust your
stores, and leave you at last at a critical moment.” Quoted
in Fields & Hardy at 420. For example, at the Battle of
Guilford Courthouse the Virginia and North Carolina militia
ran before receiving even one casualty. Their commander
noted, “They had the most advantageous position I ever
saw, and left without making scarcely the shadow of opposition.” Washington once rejected an offer from Virginia
Governor Patrick Henry to send volunteer militia, stating that
they were “ungovernable.” Quoted in Fields & Hardy at 420.
▲Battle of Cowpens by William Ranney (1845) show-
ing an unnamed black soldier firing his pistol to save
Colonel William Washington (white horse in center). Jason Isaacs as Tarleton
Colonel Sir Banastre Tarleton, by Joshua Reynolds.
Minuteman as Americana
Minuteman as agent of death
Revolver with a trigger lock
The “Powder Horn” is
also a Boy Scout Badge
for passing a high-adven-
ture resource course.
For small amounts of gunpowder a gunman
would use a powder horn. The
horn is naturally
hollow and waterproof to “keep the
A powder keg