The Volokh Conspiracy
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Firearms Specialist Richard Vasquez is surrounded by a cache of firearms in the gun vault at the Bureau of Alcohol, Tobacco, Firearms and Explosives National Tracing Center in Martinsburg, W.Va., in 2010. (Ricky Carioti/The Washington Post)
This essay is based in part on Nicholas J. Johnson, David B. Kopel, George A. Mocsary & Michael P. O'Shea, "Firearms Law and the Second Amendment: Regulation, Rights, and Policy," 2nd edition (Aspen Pub. 2017).
It is widely agreed that the United States has an exceptional gun culture. Although Great Britain is America's "mother country," the two nations have very different arms cultures. Why so? Historically, two reasons were especially important in the early colonial period:
1. The practical differences between conditions in America and in Great Britain.
2. The influence of American Indians.
What today is called "American gun culture" is founded on American Indian arms culture. The convergence of Europeans and American Indians produced a new, hybrid arms culture. Although that culture has changed over the centuries, we can still find in 21st century arms culture the influence of the Anglo-Indian convergence along the 17th century Atlantic seaboard.
Let's start with the English immigrants, who began settling in Virginia in 1607 and in New England in the 1620s.
In England, there was no written, express guarantee of a right to arms until 1689, when Parliament enacted the English Bill of Rights. In America, arms rights were recognized in the Virginia Charter of 1606 and by the New England Charter of 1620. Geographically, the two charters covered all the future English colonies in what would become the United States of America. According to the charters, the colonists had the perpetual right to import arms, ammunition and other goods for their "Defence or otherwise."
The Virginians and New Englanders also had an express guarantee of the right to use their arms at "all times forever hereafter, for their several Defences," to "encounter, expulse, repel and resist" anyone who attempted "the Hurt, Detriment, or Annoyance of the said several Colonies or Plantations." In practice, the colonists' right of self-defense against invaders and criminals would need to be exercised through the collective action of the colonists, there being no British army anywhere near.
As history turned out, the willingness of Americans to be subjects of the British crown ended when the crown began violating its guarantees of American arms rights. The American Revolution began when Americans used their firearms to resist house-to-house gun and powder confiscation at Lexington and Concord on April 19, 1775. The attempted confiscation was part of a royal plan to disarm America, set in motion by King George III's October 1774 embargo on the shipment of firearms and gunpowder to America. (By that point, Americans considered their arms rights to have been guaranteed by the 1689 Bill of Rights, because the 1606 and 1620 charters had long since been replaced.)
Although Anglo-Americans of the early 17th century had a right to arms, the arms proficiency of those first immigrants was usually poor. In the 14th and 15th centuries, the English had been the greatest longbowmen in the world. But English archery had long since decayed.
Likewise, the quality of the English militia was uneven, at best. The despotic Stuart kings ruled England from 1603 to 1688. They were terrified of popular revolution and worked hard to disarm most of the population. Even under Queen Elizabeth I (who reigned from 1558 to 1603), militia training and practice were often desultory.
In the early 17th century, many English militia arms were centrally stored rather than kept at home. There were muster days, when a community would have to demonstrate that it had arms for its militia. But practice days were fewer. When trained, English militia were taught to fire in the general direction of the enemy rather than taking an aimed shot.
For European battles, this was no problem. Because armies fought in tightly packed formations, aiming at a particular target was unnecessary.
In Great Britain, there was little opportunity for commoners lawfully to develop hunting skills. In the British Isles in the 17th century, hunting was very strictly regulated by the bewilderingly complex Game Laws. These laws even differentiated the rules of hare-hunting from rabbit-hunting.
In general, anyone could kill "vermin"—which to the English meant rats, otters and certain other animals. For everything else, hunting was allowed only for persons of a certain socioeconomic level. In the 14th century, most middle-class people were allowed to hunt. But in the 17th century (when America was being colonized), the Stuart monarchs in England tried to impose much tighter restrictions.
To the extent that the English did try to hunt with firearms, their firearms were ill-suited for the job. In England and the rest of Europe in the early 17th century, the predominant firearm was the matchlock. It was ignited by lowering a slow-burning cord into a pan of gunpowder. To keep the matchlock ready to fire on a moment's notice, the cord had to be kept burning. A hunter could hardly have the element of surprise if he were approaching while carrying something that was burning. Until nearly the end of the 17th century, matchlocks were the predominant militia and army firearms in England.
Matchlocks were adequate for European warfare. Battles were generally known in advance. When lines of soldiers fired in each others' general direction, no one was trying to be concealed.
But conditions in North America demanded a change. First of all, the early settlers had a greater need to hunt for survival. This is one reason that Anglo-Americans—far sooner than the English still in England—shifted from matchlocks to flintlocks. The flintlock's ignition is much simpler than a matchlock's: When the flintlock user pulls the trigger, a piece of flint is struck against a piece of steel, producing a shower of sparks that ignite the gunpowder. So a flintlock could be kept permanently loaded and always ready to fire in an instant. In ready mode, it does not reveal the user's location. The flintlock was more reliable in damp or windy conditions. It was also simpler and faster to reload than a matchlock. It had obvious superiority for hunting in the forests of North America. Captain Myles Standish, an early leader of the Plymouth Colony, was America's first famous flintlock user. A flintlock was three times more expensive than a matchlock, and in America, the extra price was well worth it.
Unlike England, America had no class-based hunting restrictions. The presumption was that everyone could hunt. Whatever restrictions might be imposed would apply to everyone equally.
An example of a neutral law was the Plymouth Colony's statute against firing a gun after sunset. This was because when there was an emergency (e.g., an Indian attack), guns would be fired to raise the alarm. (That was how Paul Revere's news that "The British are coming" was broadcast beyond the sound of his voice, on the night of April 18, 1775.) So Plymouth said that target practice, hunting and so on should be conducted in daylight and not when they might create a false alarm. An exception to the sundown law allowed shooting a wolf.
Since the days of Henry VIII, England had various laws that restricted firearms ownership by economic class—particularly, a minimum income level for handgun ownership. Although these laws were widely evaded in England, there is no evidence (as far as I know) of any attempt to impose or enforce such laws in America. (Race-based laws against arms possession by enslaved Africans and Indians, and occasionally against free blacks, did exist in some 17th century American colonies, and became more common in the 18th and 19th centuries, in the South).
In short, the conditions of settlement began to create a divergence between English arms culture and the emerging American arms culture: written rights, wide-open hunting, and an early transition to better guns that could fire reliably and rapidly.
The trans-Atlantic divergence was greatly accelerated by the example and influence of the Indians.
American Indians got nearly all of their protein from hunting. Although the Anglo-Americans (English in America) did hunt, they were not as dependent on hunting because the Anglo-Americans had cattle-raising and Atlantic fishing as fairly reliable protein sources.
Not surprisingly, the Indians were highly proficient with bows (as the English had been long before). They could shoot accurately at moving targets and could shoot while moving.
Indian warfare was very different from European warfare. Whereas European battles were usually known in advance to both sides, Indians fought primarily with surprise attacks and small-scale raids. The European infantryman was trained to be an automaton, absolutely obedient to his officers; he had to stay standing in line, reloading his matchlock, while lines of enemy soldiers fired at him. The Indians, however, extolled individual valor in combat. In battle, each man was his own commander.
So for European warfare of the 17th century, mass, unthinking, unaimed fire was the correct doctrine. But for Indian warfare in the dense woods near the Atlantic seaboard, individual marksmanship and initiative were essential.
The Anglo-Indian Encounter
In the Western Hemisphere, just as in the Eastern Hemisphere, the control of territory was based on right of conquest. Whoever could take and hold territory by force of arms could keep that territory as long as they could defend it. To be sure, the various groups in both hemispheres made treaties and alliances, and often managed to resolve territorial disputes without resorting to force. But when push came to shove, possession was at least 9/10th of the law and possession was based on armed victory. None of this changed when Europeans began arriving in America. Indian territories, such as the lands of the Powhatan Confederation in Virginia, that had been conquered from other Indians came under pressure from the Europeans. Warfare was endemic, with many shifting alliances between various colonies and various tribes.
Trade was also endemic. The Anglo-Americans had plenty of high-quality trade goods. For Indians, the most desired of these were firearms, right from the start of the early days in Virginia. (See Frederick Fausz's "Fighting 'Fire' with Firearms: The Anglo-Powhatan Arms Race in Early Virginia.")
Desire for the best European guns, the flintlocks, compelled Indians to develop a sophisticated and large-scale trade economy, according to Patrick A. Malone in "The Skulking Way of War: Technology and Tactics Among the New England Indians." Eventually, the Indian fur trade economy would bring fur pelts from the trans-Mississippi, through a network of tribes, to Euro-American traders near the Atlantic seaboard. Whereas European colonists in some other parts of the world could get away with selling primitive firearms, the Indians quickly became sophisticated arms consumers, knowing and demanding quality.
The Anglo-Americans faced a dilemma in their Indian trade. On the one hand, firearms sales were often a sine qua non for trade relations with any tribe of unconquered friendly Indians. On the other hand, the colonists were desperate to keep firearms out of the hands of hostile Indians. The colonists enacted many laws to attempt to control the Indian arms trade, but they were exercises in futility. To the limited extent that the laws deterred Anglo-Americans from selling arms to the Indians, Indians could acquire arms from trade networks linked to New Netherland (Delaware to Albany) or New France (Canada down to New Orleans, via the Mississippi River). Indian wars continued until the late 19th century, and nobody's policies, including those of the U.S. government, managed to prevent Indians from acquiring arms. (See David J. Silverman's "Thundersticks: Firearms and Violent Transformation of Native America.")
Especially in frontier regions, many colonists lived in a state of constant peril from Indian raids. Even when there were formal treaty relations with the most proximate Indians, the Indians might change their minds and launch a surprise attack. For example, Virginia was nearly wiped out by the Powhatan in the Second Anglo-Powhatan War, which began in 1622.
To defend families and communities, the colonists were on their own. The general 17th century model of Spanish and French colonialism centered on trade outposts run by the central government in Europe and protected by that government's standing army and navy. The English approach, though, was usually to grant a charter to a joint stock company or to a proprietor, to create some basic rules for colonial governance and relations with the mother country, and mostly to leave the colonists to fend for themselves. The English policy reduced the central government's burden of expense for the colonies and forced the colonists to provide for their own defense.
Accordingly, most colonies enacted strict laws to instill and foster a firearms culture. This required changing the habits of some of the immigrants from Europe, most of whom came from places with much weaker arms cultures.
Of course the colonial laws included mandatory participation in the militia by able-bodied males and mandatory personal arms ownership for such participation. That part of the story is well-known. But the colonial laws went further.
Many laws required firearms ownership by any head of a household, even if the head were not militia-eligible (e.g., the head of the household was a woman or an old man.) Heads of households had to ensure that there was at least one firearm for every male in the household age 16 or over. This included free servants and indentured servants. Some colonies required that when a male indentured servant completed his term of service, his "freedom dues" (goods given by the master, so that the former servant could live independently) had to include a firearm.
To encourage settlement, the Carolina colony (today, North Carolina, South Carolina and Georgia) induced immigration by offering immigrants freehold land ownership, along with strong guarantees of religious liberty. To receive the land grant, an immigrant had to bring six months worth of provisions to take care of his family while his farm was being cleared and cultivated. Also required: "provided always, that every man be armed with a good musket full bore, 10 pounds powder and 20 pounds of bullet." (See "A Brief Description of the Province of Carolina" (London 1666), a pamphlet by proprietors encouraging immigration, reprinted in "9 English Historical Documents: American Colonial Documents to 1776," David C. Douglas gen. ed., Merrill Jensen ed., 1955).
The Massachusetts Bay Colony ordered parents to arrange for arms training for all their children aged 10 or above, both boys and girls. Conscientious objectors were exempt.
Arms carrying was often mandatory for travel outside of towns and for attendance at large public events, particularly church services. Then, as now, unarmed church services were favorite targets for attack, because there would be lots of people gathered in a small space.
So one effect of the Anglo-Indian encounter was to foster a culture of widespread household gun ownership and widespread arms carrying. This was very different from conditions back in England, where the government was certainly not ordering people to always carry guns to the weekly (and mandatory) Church of England services.
Today, when we think of the ideal armed American, we think of a person ready to act responsibly without waiting for orders from above. He or she doesn't stand in place, but instead can move and can engage mobile threats. Another aspect of the ideal is what one writer calls "the cult of accuracy." (See Alexander Rose's "American Rifle: A Biography".) Such accuracy can include slow fire from a difficult distance—perhaps an arrow against a bison many yards away—or a Chris Kyle sniper shot from 600 yards. Rose traces the origins of the cult of accuracy to the popularity of the Pennsylvania-Kentucky rifle, which was first produced in the early 18th century by German and Swiss immigrants near Lancaster, Pa. They modified the traditional rifles of central Europe to meet American conditions and produced an astonishingly accurate, lightweight rifle perfectly suited for dense forests of the American colonies.
Yet the first Americans to participate in the cult of accuracy weren't the 18th-century hunters of Kentucky. They were Indians of the previous century, who quickly transferred their traditional bow and arrow skills to the newfangled flintlocks.
In King Philip's War (1675-76), the New England colonists were nearly wiped out by the hit and run tactics of the Indian coalition. The colonists survived only because they learned how to move with speed and stealth through the dense forests.
Two volunteer units proved exceptionally able at finding and engaging King Philip's very mobile warriors. Benjamin Church's volunteers were 70 percent Indian. Moseley's rangers were all from the social periphery: apprentices, servants, prisoners and Indians. Even when the volunteer units could not catch King Philip's forces, they kept up a fast pursuit, so that the camps of King Philip and his allies had to be abandoned quickly. Stores of food, ammunition, gunpowder and other supplies had to be left behind. The war of attrition gradually deprived the Wampanoag and their allies of supplies and destroyed their morale, leading eventually to surrender.
Not until the New Englanders learned to fight like Indians could they defeat the Indians.
Colonial Massachusetts never repeated its error from the first phase of King Philip's War. Thereafter, military responsibility within the colony was more equally shared. To the extent that armies for extended operations could be raised by paying well for volunteers, they were. As the English militia theorists (e.g., James Harrington, "The Commonwealth of Oceana," 1656) had predicted, a genuine people's militia served the people. "A survey of Massachusetts records reveals no instance in which the colony's rulers attempted to employ the militia as a police force, as a tax collector, or as an instrument of social control." (See Timothy Breen, "Persistent Localism: English Social Change and the Shaping of New England Institutions," 32 Wm. & Mary Q. 3d ser. 3, 23 (1975).)
A wider view of the history of American arms culture
American legal history of the right to arms has always paid attention to English legal history, especially the 1689 English Bill of Rights. Sometimes, efforts have been made to draw one-to-one comparisons, to assume that English law and practice about the right to arms must have been fully transposed to America. To the contrary, Anglo-American arms culture began diverging from English arms culture starting in 1606 and continuing ever since. The different environmental conditions in America were one cause; another was the distance from London and the necessity that the colonists take care of themselves. Accomplishing the opposite of what the despotic Stuart monarchs were attempting to impose on England, the Anglo-Americans developed a culture of near-universal armament, with a preference for guns that were more reliable, easier to conceal, faster to shoot, and quicker to reload.
The American colonists of the 17th century moved away from the European model that civic virtue in use of firearms meant standing in line, blindly obeying your social superiors and shooting with minimal skill a gun you didn't even own. The American model was responsible individual initiative, widespread personal ownership of high-quality arms and proficient accuracy. The divergence between English and American arms ideals was a cause and an effect of similar divergences in social and political life, including a broader electoral franchise and less rigid class distinctions in America compared with England.
The colonists' new arms culture was profoundly influenced by Indian arms culture, which the colonists imitated in many respects. Perhaps this weekend you may practice precise riflery on a 200-yard range. Or you may take a defensive handgun class that trains you to make quick individual decisions under pressure. Whether or not you like American arms culture, you shouldn't think of it as something that was brought across the Atlantic Ocean by European immigrants. It's true that those immigrants brought the firearms. Yet those firearms were quickly integrated into an arms culture that had already existed in America for centuries and that would eventually become the arms culture of American of all races. That was the arms culture founded by the first Americans, the American Indians.