Tench Coxe and the Right to Keep and Bear Arms, 1787-1823

By Stephen P. Halbrook[a1]

and David B. Kopel [aa1]

Copyright © 1999 by the Publications Council of the College of William & Mary; Stephen P. Halbrook and David B. Kopel

***

*348

Introduction

Under medieval English law, common law pleadings in a civil case would proceed until the matter could be settled by the resolution of a single fact or question of law. [1] The continuing debate about whether the Second Amendment [2] guarantees a right of the American people to keep and bear arms, or a power of state governments to have a militia, likewise can be resolved by focusing on the political leader in the Early American Republic who wrote more than anyone else about the right to bear arms: Tench Coxe.

Tench Coxe, a Philadelphian, wrote numerous widely-circulated articles in favor of the new Constitution proposed in 1787 and, later, about the proposed Bill of Rights. He was appointed to subcabinet positions (just below a Cabinet Secretary) by Presidents Washington, Adams, Jefferson, and Madison. In the Jefferson administration, his duties included procuring firearms for militiamen who could not afford to purchase their own weapons. From his appearance on the national stage in the late 1780s until his death in 1824, Coxe wrote prolifically, with his work appearing in major newspapers, in lengthy reports for Presidents, and in personal correspondence with leading political figures.

Today, Coxe is known to economic historians as a leading forerunner of the American Nationalist School of economics, with his advocacy of a "balanced" and self-sufficient national economy emphasizing both agriculture and manufacturing. [3] *349 Coxe is known to political historians for his role in the election of 1800, during which he wrote articles charging President Adams with being sympathetic to monarchy. [4] To legal historians, Coxe is known best for his federalist writings in 1787-1788, in favor of the new Constitution. [5] The Supreme Court has quoted these writings approvingly [6] and Coxe has been recognized as one of the "other Federalists"-men such as John Dickinson, James Wilson, and Noah Webster-whose federalist writings, while not contributing as much to enduring political theory as did those of James Madison, Alexander Hamilton, and John Jay in The Federalist, played a major role in winning popular support for the Constitution and in explaining what the Constitution meant to its contemporaries. [7]

Coxe also is central to the ongoing Second Amendment debate. In the past two decades, the once-ignored Second Amendment has been the subject of scores of law review articles. Almost all of these articles adopt what now is called the "Standard Model" of the Second Amendment-the interpretation that the Amendment guarantees the right of individual Americans to own and carry firearms. [8] In the *350 Standard Model literature, Coxes is discussed frequently, [9] while critics of the Standard Model never acknowledge his existence or address his writings. [10] But even in the *351 Standard Model literature, the focus has been almost exclusively on Coxe's writings in 1787 to 1789, in derogation of his subsequent writings and his service in the subcabinet, both of which reveal important aspects of what the right to keep and bear arms meant to its early advocates.

As the Standard Model has become a widely-shared consensus among legal scholars who have written on the Second Amendment, the competing "states' rights" theory of the Second Amendment has nearly vanished from legal literature. Instead, the opponents of the Standard Model have adopted what might be called the "nihilist theory" of the Second Amendment: The Second Amendment "had no real meaning." [11] Garry Wills first advanced this view in a New York Review of Books article in which he asserted that James Madison, author of the Second Amendment, had pulled a hoax on the entire nation: despite what Madison's contemporaries thought, the Second and Third Amendments have no content. [12] In a letter to the editor, Glenn Harlan Reynolds quoted the most contemporaneous known exposition of the Second Amendment-a newspaper article written by Tench Coxe just days after Madison introduced the Bill of Rights in Congress. [13] Coxe described the Second Amendment as an individual right; Madison wrote Coxe a letter praising *352 Coxe's article. [14] Wills replied angrily that just because Madison wrote Coxe a nice letter approving Coxe's article "does not mean that Madison agreed with it." [15] Indeed, if Madison were so dishonest that he would defraud the American nation when writing the Bill of Rights, it would be reasonable to expect that Madison would also be less than forthright in his personal correspondence.

Thus, as Wills acknowledged implicitly, to accept Coxe's view is to accept the Standard Model. Wills was not right to dismiss Coxe so curtly. Tench Coxe certainly was not in the first-tier of historical importance with his friends James Madison and Thomas Jefferson; but the Dictionary of American Biography does conclude that Coxe "was a handsome, winning person, capable and versatile, high in the second rank of men of his day." [16]

The evidence for the Standard Model of the Second Amendment is overwhelming even without a consideration of Coxe. For example, there is no writing from 1787 to 1793 that states either the "states' rights" or the "nihilist" thesis. [17] All legal scholarship dating from the creation of the Second Amendment and extending through the first decades of the twentieth century considered the Second Amendment to guarantee an individual right. [18] Furthermore, the Supreme Court repeatedly has treated the Second Amendment as guaranteeing an individual right, and never as anything else. [19]

Still, Tench Coxe is important. No one in the early republic wrote more about the right to arms than did Coxe. Second Amendment topics discussed by Coxe include the nature of a "well regulated militia," the meaning of a "free state," the *353 constitution of "the people," the penumbras of "keep" and "bear," and the "arms" protected from infringement.[20]

This Article is divided into four Parts, each of which corresponds to major developments in the republic's early history and to Coxe's attention to the right to keep and bear arms. Part I discusses Tench Coxe's emergence as a leading proponent of the Constitution. After tirelessly defending the proposed new government from anti-federalist criticism, he championed the Bill of Rights, including the Second Amendment. Part II considers Coxe's service in the Treasury Department of Presidents Washington and Adams, and concludes by highlighting Coxe's heralding of the Jeffersonian banner against President Adams in the 1800 election and his chastising of Adams for his alleged neglect of the militia.

Part III explores Coxe's role in arming the populace in order to avoid standing armies. As purveyor of public supplies under Presidents Jefferson and Madison, Tench Coxe encouraged the American firearms industry and procured arms for militias in the period leading up to the War of 1812. At the request of the Madison administration, Coxe undertook a thorough analysis of the American economy, including the role of the burgeoning gun manufacturers. Finally, Part IV reveals the aging warrior's effort to defeat the election of another Adams as president. Writing against the candidacy of John Quincy Adams, Coxe provided his most comprehensive exposition of the protection of the right to keep and bear arms accorded individuals in republics and of the infringement of this right by monarchies.

A. Who Was Tench Coxe?

Tench Coxe came from a family that continually held a leading role in public affairs. His great-grandfather Daniel Coxe was a physician to Charles II and to Queen Anne. [21] Although Daniel Coxe never left England, he served nominally as Governor of New Jersey by purchase of land, and bought other large tracts of land throughout America. [22] He attempted to settle a colony of Huguenots in Virginia, but failed. [23] Daniel Coxe's son, also named Daniel Coxe, served as a colonel in the British Army stationed in North America. [24] He settled in Pennsylvania and served, *354 first, on the colony's Supreme Court, later, as Speaker of the Assembly and, still later, on the New Jersey Supreme Court. [25] Daniel Coxe was, as his grandson would be, a strong advocate of American unity. In 1722, he wrote a book proposing that an assembly of delegates from each state and a national executive could unite the American colonies. [26]

Tench Coxe's maternal grandfather was Tench Francis, "the undisputed leader of the Pennsylvania bar of his time," [27] whose eloquence earned him the appointment of attorney general of Pennsylvania in 1741. [28] One of Tench Coxe's uncles (by marriage) was Chief Justice Edward Shippen of the Pennsylvania Supreme Court. [29] Coxe's cousin Tench Tilghman served as a negotiator with the Onandaga Indians on behalf of the Continental Congress, and then as aide-de-camp to General Washington throughout the Revolutionary War. [30] Through the Tilghmans, Tench Coxe was related to one of the leading families in Maryland and Pennsylvania, composed of outstanding lawyers who also served as militia officers and in the Continental Army. [31]

Tench Coxe was the twenty-year-old son of a merchant residing in Philadelphia, Pennsylvania when the War for Independence broke out in 1775. [32] Coxe's company carried on a thriving business with Loyalists and the British army when the British occupied Philadelphia [33]-a business which would have been impossible if the British military commanders had decided not to allow it.

There is no indication that young Tench Coxe played any role in the Pennsylvania Constitutional Convention of 1776, during which delegates adopted a State Declaration of Rights stating: "That the people have a right to bear arms for the defence of themselves and the state ...." [34] The Constitution also provided that " t he freemen of this commonwealth and their sons shall be trained and armed for its defence" [35] and that " the inhabitants of this state shall have liberty to fowl and hunt" in unenclosed lands. [36]

After radical Patriots took power, Coxe left Philadelphia for a few months only *355 to return when British General Howe occupied the city in September 1777. [37] Coxe remained in Philadelphia after the British departed in 1778, and some Patriots credibly accused him of having Royalist sympathies and of having served briefly in the British army. [38] Although Coxe's trading successes during the period of British occupation lent considerable support to the charges, nothing came of the allegations, and the Revolution ended before Coxe became active in politics. [39] The Pennsylvania militia records of 1780, 1787, and 1788 listed Coxe as a militia private. [40]

Whatever Coxe's attitude during the first part of the Revolution in Pennsylvania, the events of the Revolution seem eventually to have influenced Coxe's political philosophy on the issue of men and arms, because most of what Coxe later wrote about the connection between arms and freedom was consistent with revolutionary Patriot philosophy. For example, Coxe, like the delegates who created Pennsylvania's 1776 Constitution and like other Patriots of revolutionary Pennsylvania, saw a direct connection between the right to hunt and the strength of the militia as a check on tyranny. [41]

When occupying Philadelphia in 1778, British General Howe had disarmed the population. [42] As reported in Philadelphia newspapers, General Gage had done the *356 same to the citizens of Boston in 1775. [43] Although it is not known how Coxe reacted to the disarmament at the time, his later writings are aligned closely with the political *357 philosophy of vehement opposition to firearms confiscation that Patriots of the time expressed in Philadelphia.

B. Before the Constitutional Convention

When the Revolution ended, Coxe formed the international merchant firm of Coxe & Frazier [44] and began to take an interest in political reform. In addition to playing a leading role in the Philadelphia Society for Alleviating the Miseries of Public Prisons, [45] Coxe served as secretary of the Pennsylvania Society for Promoting the Abolition of Slavery, [46] of which Benjamin Franklin was president. [47] In 1786, Coxe represented Pennsylvania by serving as the secretary for the Annapolis Convention, the effort to revise the Articles of Confederation, which set the stage for the constitutional convention the following year. [48] Coxe also was appointed to represent Pennsylvania in the Continental Congress. [49]

Firearms were among the many commodities dealt in for many years by the firm of Coxe & Frazier. A sample of business records from 1786 illustrates the *358 company's involvement in the firearms businesses, and also reflects politico-military conditions at that time. Several New York militia companies lacked sufficient muskets of a common bore, and ordered two hundred stands from the firm. [50] The State of Georgia ordered five hundred stands of arms for the Georgia state militia, and a Southern distributor observed how dangerous conditions were in the deep South: "you apprehend they will want them for there is scarcely a doubt, but they will be engaged in an Indian war-if they should not purchase we apprehend this state South Carolina will ...." [51] A Northern distributor who ordered from Coxe likewise noted how the people were arming themselves in response to political instability: "The present uneasiness in Massachusetts Shays's Rebellion has caused a great demand for muskets, in consequence of which we have disposed of about three hundred of yours with bayonets & c at three dollars each ...." [52] Like most others in the arms business, Coxe made arms for private purchase (the firearms sold in Massachusetts), for state militias (Georgia), and for local militia groups (New York).

In the summer of 1787, while the constitutional convention met in Philadelphia, Coxe presented a paper urging industrial development to the Society for Political Enquiries at the house of Benjamin Franklin. [53] The paper presaged the major role Coxe would play in the Jefferson and Madison administrations by promoting an early version of American industrial policy. [54] Among the articles that he promoted for domestic manufacture were gunpowder and ironworks. [55] While the convention was meeting, Coxe delivered a major address about the need for government to promote invention. Madison probably knew of Coxe's remarks, as Madison soon after proposed to the Constitutional Convention that Congress should have authority to encourage discoveries through premiums and provisions. [56]

*359

C. Defending the Proposed Constitution

Less than ten days after the constitutional convention in Philadelphia ended, Tench Coxe began defending the Constitution in a series of essays published in the Philadelphia Independent Gazetteer and reprinted throughout the United States. [57] He sent the first two essays to James Madison in New York, explaining: "My anxiety in favor of the new federal Constitution has induced me to attempt some comments on it, that might render it more clear and agreeable to the people at large .... [58] Madison responded: "I have received & perused with much pleasure the remarks on the proposed Constitution for the U.S. which you have been so good as to favor me with." [59] Madison promised to see that the articles were republished in Virginia and kept his promise. [60]

Justice William Brennan, citing one of Coxe's essays about the jurisdiction of federal courts, noted that Coxe had been "widely reprinted" during the ratification debates. [61] Justice White described Coxe's essays as "the first major defense of the Constitution published in the United States." [62] Coxe's biographer Jacob Cooke elaborated upon the importance of Coxe's writings: "Although Coxe's essays were not in the same literary league as The Federalist , they perhaps were contemporaneously more influential, precisely because they were less scholarly and thus easier for most readers to follow.... As Madison, Rush, and other contemporaries recognized, Coxe's writings ... contributed materially to the Constitution's adoption." [63]

While some historians in previous decades tended to look only to the authors of The Federalist (James Madison, Alexander Hamilton, and John Jay) to understand the arguments made for ratification of the Constitution, modern historians have a broader view; many recognize Tench Coxe-along with writers such as James *360 Wilson, John Dickinson, Noah Webster, and others-as a leading defender of the Constitution, one of the influential "other" Federalists who played a major role in shaping the debate over the Constitution. [64] Indeed, even Garry Wills admits that Tench Coxe "coordinated the efforts at ratification, establishing a network of communications with federalists everywhere." [65] Thus, it is not surprising that Coxe has been discussed and cited many times by legal historians-including scholars as diverse as Michael McConnell [66] and Herbert Hovenkamp [67]-regarding the original understanding of the Constitution.

In the fourth of a series of essays defending the Constitution, Coxe argued that, should tyranny threaten, the "friends to liberty ... using those arms which Providence has put into their hands, will make a solemn appeal to 'the power above."' [68] Hence, the new Constitution did not need a declaration of rights any more than the Articles of Confederation did: "Neither of them have a bill of rights, nor does either notice the liberty of the press, because they are already provided for by the State Constitutions; and relating only to personal rights, they could not be mentioned in a contract among sovereign states." [69] As for the alleged danger of a standing army: "The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon *361 the regular troops, and will generally be sufficient to over-awe them ...." [70] Coxe wrote Madison of this installment:

At the request of Mr. Wilson, Dr. Rush and another friend or two I added a 4th. paper, calculated to shew the general advantages & obviate some of the Objections to the System.... [I] wish that you and Col. H[amilton] may make any use of them, which you think will serve the cause. [71]

Madison replied that he had disposed of the papers as directed and had given copies to Alexander Hamilton: "I have no doubt that he will make the best use of them.... The 4th is a valuable continuation, and I shall be equally desirous of seeing it in the Virginia Gazettes; and indeed in those of every State." [72] The installment was published widely, [73] and the series circulated as a vital part of the national debate. [74]

The argument that the militia would be sufficient to over-awe a standing army was persuasive in Pennsylvania, [75] the first state to call a convention. But antifederalists *362 at the convention were not convinced. As John Smilie warned: "Congress may give us a select militia which will, in fact, be a standing army-or Congress, afraid of a general militia, may say there shall be no militia at all. When a select militia is formed; the people in general may be disarmed." [76] James Wilson, who had urged Coxe to write "An American Citizen IV," contended that the Constitution already allowed for the ultimate force in the people: " In its principles, it is surely democratical; for, however wide and various the firearms of power may appear, they may all be traced to one source, the people." [77]

The Pennsylvania Convention adopted the Constitution in mid-December of 1787, but not without strong opposition. [78] A large number of delegates had opposed the new Constitution, especially if it were not to contain a bill of rights. The anti-federalist delegates explained their reasoning in The Dissent of the Minority of the Convention. [79] The Pennsylvania minority castigated the majority for not allowing the proposal of amendments-in particular a bill of rights, which would have provided in part:

That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals .... [80]

 

*363

 

Coxe immediately set out to refute the objections of the convention minority. Under a pen-name, "Philanthropos," Coxe pointed out that the Pennsylvania minority's demand for a bill of rights had not (yet) been raised by prominent antifederalists in other states:

The right of the people to fish, fowl and hunt, the freedom of speech, provision against disarming the people, a declaration of the subordination of the military to the civil power, annual elections of representatives, and the organization and call of the militia, are considered by the minority of our convention, as on an exceptionable footing; but none of these are even mentioned by [G]overnor Randolph, [M]r. Mason or [M]r. Gerry. [81]
Coxe further contended, in another article, that the minority's fear of the federal standing army was ridiculous, as was the minority's fear that the Congress might disarm the people:

The power of the sword, say the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. [82] The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American. What clause in the state or federal constitution hath given away that important right.... T he unlimited power of the sword is not in the hands of either the foederal or state governments, but where I trust in God it will ever remain, in the hands of the people. [83]

*364

Of this series, Coxe's modern biographer has written: "The articles signed 'A Pennsylvanian' were Coxe's most noteworthy contribution to the ratification debate and invite comparison to the best of the literature spawned by that controversy, including the Federalist essays, which Coxe approvingly quoted and to which his work was superior in its treatment of some subjects." [84] It is possible that Coxe influenced the writers of The Federalist, because Madison and Hamilton had read and disseminated his publications before composing their own, and there is some similarity among them in treatment of subject matter. [85] For instance, after having read "An American Citizen IV," Hamilton argued in The Federalist No. 29 that an "army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow- citizens." [86]

Such was the cross-fertilization of ideas that, before Coxe published his thoughts on the power of the sword in the hands of the people, Madison had sent Coxe The Federalist No. 46. [87] Madison rejected fears of a federal standing army, because to a regular army "would be opposed a militia amounting to near half a million of citizens with arms in their hands." [88] Madison lauded "the advantage of being armed, which the Americans possess over the people of almost every other nation." [89] That the federal standing army would be held in awe by popular militias ready to defend strong state governments and individual liberty was part of the pro-Constitution philosophy developed by Coxe, Madison, Hamilton, and other federalists. [90]

*365 Among the advantages Coxe saw in the new Constitution was the fact that ex post facto laws "are exploded by the new system." [91] The explicit prohibition on ex post facto laws would raise peoples' consciousness of their rights and encourage them to armed revolt against any future government that attempted to impose ex post facto laws:

If a time of public contention shall hereafter arrive, the firm and ardent friends to liberty may know the length to which they can push their noble opposition, on the foundation of the laws. Should their country's cause impel them further, they will be acquainted with the hazard, and using those arms which Providence has put into their hands, will make a solemn appeal to "the power above." [92]

In other essays written in response to the objections of the Pennsylvania minority, Coxe argued that the new federal government would not be able to interfere with the state militias, because the Constitution provided that each state would train its own militia and choose the officers for its militia. [93]

*366
D. The Bill of Rights

Federalists cited the existing guarantees for personal rights in the state constitutions, [94] the presence of an armed populace, [95] and the lack of a granted power in the proposed Constitution to infringe upon individual liberties [96] as precluding the need for a bill of rights. In keeping with this approach, Coxe questioned the wisdom of considering amendments before the experiment had been tried. [97]

In 1788 Coxe served as one of Pennsylvania's last delegates to the Continental Congress, which held its final session early the following year. [98] In the meantime, the requisite nine states ratified the Constitution. [99] As a compromise with the Constitution's opponents, who agreed not to oppose the Constitution further, many federalists reversed their opposition to a bill of rights in order to entice the remaining states to ratify. On June 8, 1789, in the newly formed U.S. House of Representatives, James Madison proposed a bill of rights that included the following:

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person. [100]

Coxe was in an excellent position to know what Congress was doing; he was living in New York City (where the first Congress was meeting) and was serving as an unofficial policy advisor to several leading congressmen. [101] In this capacity, he *367 helped shape the Judiciary Act of 1789, which created the lower federal courts; legislation regarding the President's power to remove his appointees; and the patent bill. [102]

Perhaps alerted to Madison's proposals in advance of the general public, within ten days "A Pennsylvanian" again appeared in print, this time in the Philadelphia Federal Gazette with his Remarks on the First Part of the Amendments to the Federal Constitution. [103] Probably the most comprehensive section-by-section exposition on the Bill of Rights to be published during its ratification period, Coxe's Remarks included the following:

As civil rulers, not having their duty to the people, duly before them, may attempt to tyrannize, and as the military forces which shall be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms. [104]

Coxe sent a copy of his essay to Madison along with a letter of the same date. [105] Madison wrote back acknowledging "Your favor of the 18th instant. The printed remarks inclosed in it are already I find in the Gazettes here New York ." [106] Madison added approvingly that ratification of the amendments "will however be greatly favored by explanatory strictures of a healing tendency, and is therefore already indebted to the co-operation of your pen." [107]

In 1790, Treasury Secretary Alexander Hamilton appointed Coxe as the Assistant Secretary of the Treasury, making him Hamilton's second in command. Two years later, and at Coxe's request, Hamilton made Coxe the Commissioner of the Revenue. [111]

As Commissioner of the Revenue, Coxe was in charge of the collection of all tax revenues, including the revenues from the Hamilton-inspired federal excise tax on distilled spirits, which prompted the 1794 Whiskey Rebellion in western *369 Pennsylvania. [112] While there is no evidence that Coxe personally supported the tax-which bore unfairly on western farmers in general and on his state of Pennsylvania in particular (because farmers needed to distill their grain before taking it to market, in order to make it more compact and, thus, transportable)-Coxe strongly opposed the western Pennsylvania farmers taking up arms in protest against the excise tax. [113]

Critics of the individual rights interpretation of the Second Amendment sometimes claim that the Standard Model implies that people can go to war with the government whenever they disagree with any government decision, such as an unpopular tax increase. [114] Coxe refutes this claim. Coxe clearly believed in the individual right to arms, and he just as clearly believed that it was wrong for the Pennsylvania farmers to take up arms against a lawful tax that had been duly created through proper constitutional methods. [115] Coxe would continue to support the right to arms as a mechanism allowing popular revolt as a last resort against tyranny-but Coxe, like the vast majority of Americans, could tell the difference between a tyrant and George Washington. Today, when federal taxes are much higher than the taxes that sparked the Whiskey Rebellion, the vast majority of Americans, including those who support Coxe's understanding of the Second Amendment, agree that a tax constitutionally imposed by Congress is no grounds for a Second Amendment revolution to rescue the Constitution from tyranny.

While serving President Washington's administration, Coxe wrote a major book analyzing the future of the American economy: A View of the United States of America. [116] The book was a leading work of the time on commerce, industry, and agriculture, [117] and has earned a modern reprint because of its comprehensive and insightful examination of American economic development. Coxe was the first American economist to foresee the immense economic potential of cotton culture in *370 the United States. [118] He also observed that "Manufactures of iron form a very increasing and useful branch ... including arms of various kinds." [119] He noted: "The Indian War and the renewal of our militia system has greatly revived the manufacture of arms." [120] Coxe argued that gunpowder already was being manufactured in several places more cheaply than it could be imported: [121] "The manufacture of gunpowder has advanced with the greatest rapidity to the point of desire in regard both to quantity and quality." [122] In an economic analysis written in 1789, Coxe urged moderate protection for a variety of essential domestic industries, including firearms and gunpowder, [123] but the industries apparently were improving without need for much protection. [124]

*371 Coxe's growing alignment with Thomas Jefferson and other Republicans led to his dismissal from office by President John Adams in 1797. [125] Coxe then plunged into political activity supportive of the Republican cause, [126] adherents of which claimed to be suffering repression under the Sedition Act within a year. [127]

Coxe closely associated himself with the Philadelphia Aurora, the leading Jeffersonian newspaper of the time. [128] By mid-1799, according to accounts in this paper, armed conflict between Federalists and Republicans threatened. The Aurora published reports of bullying, weapons brandishing, and rioting by soldiers in the Federalist faction. [129] In retaliation, a mob of "federal savages" attacked and beat Aurora editor William Duane. [130] As a consequence of the mob's threat to destroy the press, "a number of republican citizens collected with arms and ammunition, continue to mount guard in the Printing-Office." [131]

The same issue of the Aurora which included this report, also included an article signed by Tench Coxe and an urgent appeal by "Mentor" addressed "To the Republican Citizens of Pennsylvania." [132] The article vividly expressed the premises upon which Republican doctrine rested:

But as men intent upon hostility have associated themselves in military corps, it becomes your duty to associate likewise-Arm and organize yourselves immediately ....
*372 Do you wish to preserve your rights? Arm yourselves-Do you desire to secure your dwellings? Arm yourselves-Do you wish your wives and daughters protected? Arm yourselves-Do you wish to be defended against assassins or the Bully Rocks of faction? Arm yourselves-Do you desire to assemble in security to consult for your own good or the good of your country? Arm yourselves.-To arms, to arms, and you may then sit down contented, each man under his own vine and his own fig-tree and have no one to make him afraid....
If you are desirous to counteract a design pregnant with misery and ruin, then arm yourselves; for in a firm, imposing and dignified attitude, will consist your own security and that of your families-To arms, then to arms. [133]

 

Subsequent issues of the Aurora charged that newspaper offices were being attacked around the country wherever Federalists were losing elections. [134] The paper portrayed the riot, the attack on Duane, and President Adams's dismissal of Tench Coxe as elements of a Federalist conspiracy to institute monarchy. [135] Finally, the Adams administration had Duane arrested for seditious libel for publishing a letter Adams (while Vice President) wrote to Coxe which admitted British influence in the government. [136] Duane was vindicated, and the Federalists were embarrassed, when he offered to produce the authentic letter. [137]

The Alien and Sedition Acts and other Federalist transgressions were not the only aspects of the administration of John Adams that the Republicans attacked in the election campaign of 1800. Tench Coxe and other supporters of Jefferson emphasized that the monarchical tendencies of Adams also were exemplified in his neglect of the militia and support for a standing army.

Writing "To the American People" under the pen-name "Humanus," Coxe decried "the substantiation of a hired army, and of rich armed townsmen and partymen, under the cloak of volunteers, for the general constitutional militia." [138] Coxe devoted an entire section of the lengthy article to the topic of " volunteers, liable to be passed through the Strainers of party, substituted for the constitutional Militia." [139] Coxe pointed out that just before the militia law of June 1797 expired, Congress passed the Act of May 28, 1798, "authorizing the President to accept any *373 number of Volunteer Corps." [140] The subsequent Act of March 1799 limited the number of authorized volunteers to 75,000; still too large a number for Coxe. [141]

Coxe described Federalist objectives in these terms: "The proposed and ordinary arming and equipment of the militia, could thus, by law, be avoided, omitted, or postponed, and the same arms, accouterments, and cannon could be applied at the discretion of the Executive, to the equipment of those Volunteer Corps." [142] Thus, the constitutional militia of all the armed people would be superseded with the following inevitable result:

A well-armed Party-corps of 75,000 men, and tens of thousands of hired army, on the one hand; and a neglected, disused, and un-armed militia, on the other. The militia includes all the owners of all the property of the state, and are its sure defenders. [143]

Coxe enunciated similar sentiments in further articles, [144] and in a major series sought to demonstrate the alleged support of John Adams for a hereditary president. [145] While Coxe's analysis correctly stated the American preference for an *374 armed people over a standing armed elite, it cited no specific writing of John Adams which denied the right of the people to keep and bear arms. To the contrary, Adams was, and would remain, a supporter of the private possession of arms and of a universal militia. [146

Coxe had first met Thomas Jefferson in 1790, when introduced by Benjamin Rush. [147] Thereafter, Coxe served as an unofficial economic advisor to Jefferson, and helped the secretary of state prepare reports to Congress about America's international commerce. [148] Having written so assiduously on behalf of Jefferson in the 1800 election, Coxe began angling for a position in the Jefferson administration. [149] But Coxe did not succeed until 1803, when President Jefferson-at the recommendation of Secretary of Treasury Albert Gallatin, himself a former arms manufacturer [150]- appointed Coxe as purveyor of public supplies. [151] *375 Coxe held the post through the rest of the Jefferson administration, and for the first four years of Madison administration, including the opening months of the War of 1812. [152]

Aside from political considerations of gratitude for Coxe's work in opposition to Adams in the election of 1800, the selection of Coxe as the head of military procurement stemmed from both his experience as a merchant and his political commitment to the militia as the defense of a free society. [153] Halving the size of the standing army and arming the militias were important objectives of the Jefferson administration. [154]

Even as Jefferson was attempting to shrink the standing army, the Napoleonic wars in Europe had created a constant foreign policy crisis for the United States. Under the Adams administration, the United States nearly had gone to war with France, and certainly would have done so if a hawk like Alexander Hamilton, rather than a steady statesman like John Adams, had been president. As purveyor of public supplies, Coxe was responsible for procuring arms for both the standing army and the militia during years when war and foreign invasion were a constant threat [155]-a threat that materialized in 1812. [156]

*376

A. Coxe's Concept of Federal Arms Policy for the Militia

The arming of the militia was the subject of an opinion Coxe included in a letter written to President Jefferson in January 1807. [157] Coxe began by reviewing the militarization of Europe which stemmed from the struggle by hierarchies and aristocracies against revolutionary, late Napoleonic, France. [158] The republican principles that threatened European powers originated in America:

In the long course of stupendous events from the time of the meeting of the notables in 1788 [159] to the present day, the United States of America have been wonderfully preserved from actual war, and political and civil injury. But it is a manifest and solemn truth, that the vital principles of our constitutions were the incipient causes of these conflicts, and that they were unceasing objects of the fears, resentments, and hatreds of all the crowns, aristocracies, and hierarchies as well among the vanquished as the victors. [160]

It was "an immense collection of powerful military despotisms, covering the face of the transatlantic world" that threatened the infant states in America. [161] Yet, a potential invader would pay dearly in any attempt to subjugate the land, particularly if more stress was laid on arming the people:

Tis to implements of war that we should turn our attention, our exertions and our funds to ensure and complete our means of defense.

The free people of these states may be estimated at five millions. The men able to bear arms may be computed at one million. It is respectfully believed and it is most anxiously suggested that measures for the immediate acquisition by purchase, importation and manufacture of muskets, rifles and pistols to arm our one million of effective free men ... should be taken into consideration. [162]

*377 Coxe went on to recommend that arms and/or funds should be offered to the more vulnerable states, to enable "our governments to arm every free man, who has personal rights or property to watch, maintain and defend." [163] This would deter any potential aggressor from attack:

To encounter a nation of 5 or 6 millions of armed free men ... would be a conflict unpromising of any kind or degree of real advantage .... In short, it is confidently believed, that completely armed-duly temperate-and reasonably just, we may rely, under Heaven, on the preservation of our accustomed peace, our liberty and our safety. [164]

 

Jefferson thanked Coxe for his useful ideas: "Your idea of providing as many arms as we have fighting men is undoubtedly a sound one." [165] It was a matter that should be impressed upon the Congress, which moved slowly, Jefferson thought.

[Only] the session before last I proposed to them ... that every man should receive a stand of arms [166] the first year he entered the militia. This would have required 20,000 stands a year and in a few years would have armed the whole besides the stock in the public arsenals .... [167]

The President believed that the measure would prevail eventually. Private and public manufacture could produce "40,000 stand of arms a year but they come so much dearer than the imported of equal quality." [168] In any event, the European governments were too busy fighting each other to invade republican America. [169]
During the same period, Coxe published his Thoughts on the Subject of Naval Power, which further clarified the superiority of the militia over standing land and sea forces. [170] A primary objection to a large fleet was that impressment might be resorted to:

*378 Will the seamen of the United States submit to a civil regimen in this case, like that of Great Britain? Will the rest of the people of this country consent to such an example of coercion and limitation of wages? ... It may be fairly and prudently asked, [w]hether a standing naval establishment is not liable to a large proportion of the objections to a standing army .... [171]

 

The second part of the same work stressed the superiority of the armed people over standing establishments for defense consistent with freedom. [172] In some respects, a naval power may be more difficult to check than a land force and, besides, would produce wars through foreign contacts:

When the United States determined to avoid the expenses and dangers of "a standing army," they found in the rights and habits of the chase and of arms, and in their universal militia, adequate and safe means of suppressing insurrection and repelling invasion. They did not desire an army for ambitious wars.... Even in the season of war we have believed, that a proper establishment of the militia will be indispensable to counterbalance the weight of the army.
... If we should create a powerful fleet, it will not be controllable by the militia, who never can have ships on their establishment. [173]

 

Here Coxe sounded a theme that already had been stated strongly in the Pennsylvania Constitution [174] by Pennsylvania Patriots during the Revolution, [175] and in the minority report from the Pennsylvania ratifying convention: [176] the close connection between "the rights and habits of the chase and of arms," and the "universal militia," as elements ensuring "adequate and safe means of suppressing insurrection and repelling invasion." [177] Coxe would develop the issue at much greater length later in his career, in his critiques of the British and French game laws. [178]

*379 Not only would the lack of a strong navy decrease foreign friction and diminish the possibility of oppression, but properly armed citizens were fully capable of defending the ports:

It is submitted, therefore, whether if the 10 or 1,200,000 men, able to bear arms in the United States, were provided with depots of every useful and necessary species of arms from large cannon and heavy mortars to musquets, pistols, and swords, at and around our sea ports, they would not prove a more effectual bar to any considerable mischief in our ports, than the limited navy, which is so ardently desired. [179]

 

Coxe provided President Jefferson with his manuscript on naval policy, and the President replied: "I have read with great satisfaction your observations on the principles for equalizing the power of the different nations on the sea, and think them perfectly sound." [180]

B. Coxe's Role in Arming the Militias

In 1807 and 1808, Congress finally passed legislation to arm the militia, providing an annual appropriation "for the purpose of providing arms and military equipment for the whole body of the militia of the United States, either by purchase or manufacture." [181] The arms were to be transmitted to the states for distribution to *380 their militias. [182] The federal armories in Springfield, Massachusetts, and Harper's Ferry, Virginia were not capable of meeting the production demands of Congress. [183] In administering the program, Coxe contracted with and made monetary advances to private arms manufacturers. [184] This system of government patronage greatly advanced the development of small arms making from a handicraft to a modern industry, in part by promoting the development of interchangeable parts. [185]

Today, critics of the Standard Model individual rights view of the Second Amendment sometimes point to government efforts to arm the militia, and argue that, because the government supplied some militia forces with arms, the right to keep and bear arms must not be a right of individuals. [186] But this view is incoherent on its face. Just because the government today gives people things to read, such as the vast output of books from the Government Printing Office, does not mean that individuals do not have a right to read other books of their own choosing. This principle would still be true even if the government ordered the people to read certain books considered essential to public service. [187]

Moreover, the anti-individual rights argument ignores the well-known distinction between "private arms" and "public arms." "Public arms" were supplied by the government to persons for public use-for militia service. Public arms might at some point have to be returned to the government. [188] "Private arms" were firearms (or *381 swords) owned by individuals; individuals could use them for militia service, and a person with his own private arms would not need the charity of public arms. The distinction between the two types of arms was set forth in the 1823 Return of the Adjutant General of the enrolled militia in Pennsylvania, which contained an inventory of the supply of arms (of all types) available for militia use. [189] The editor of the Democratic Press described the Return in these words:

Our stock of Public Arms are respectable but it is still more gratifying to observe the number of Private Arms returned. There are no less than twelve thousand six hundred and seventy-eight Rifles reported as private property, and two thousand and thirty-eight public rifles .... Sharp Shooting, Good Marksmanship, is eminently a trait in the American Character .... [190]

Explaining the Second Amendment, Tench Coxe, the great purveyor of public arms, had written in 1789 that "the people are confirmed by the next article in their right to keep and bear their private arms." [191] Public arms certainly could help achieve the Second Amendment's goal of a well-regulated militia; depending on the wealth of the people of any given region, the number of public arms donated in order to supply the militia fully might exceed the number of private arms brought to militia service. The donation of public arms, however, hardly negated the right to keep and bear "private arms."

For Coxe, the 1808 Act was an ideal opportunity to use federal resources to help build a strong domestic firearms industry. Coxe's letters to Secretary of War William Eustis set forth the relation between the industry and an armed populace. [192] To defeat a standing army, a populace must be well armed:
*382 No part of Europe will permit us to obtain arms from them.... A general armament for the purpose of a general stand is a measure ... worthy of consideration. The omnipresence of the public force is the consequence of a general armament. The skill of modern regular armies require the mass of the population to be equipped for resisting the potent invaders of this time. [193]

Sales of arms to the public would not only arm them, but would also generate industry advances:

A decided tone, a good inspection, good patterns and in short much care, pains and vigilance are necessary to procure substantial Arms from public & private Armories. If sales to the Militia & private persons [&] to ships should at any time be desired and practicable, it would keep up the manufacture and enable us to improve the standard quality. [194]

 

Coxe proposed the sale of 10,000 muskets, rifles, pistols, and swords. [195] The Jeffersonian promotion of the firearms industry represented a return to the values of the Revolution, according to Coxe:

The manufacture of Arms was dormant at the time of the first operations for rifles, pistols and swords. Same had been since the War till the end of Adams' presidency. The private arms makers were generally discontinued for regular Military use. We had to revive them. [196]

In a circular to contracting gunsmiths, Coxe emphasized: "The importance of good arms is manifest.... The lives of our fellow citizens, to whom the use of them is committed, depend upon the excellence of their arms." [197] In his correspondence with manufacturers and inspectors, Coxe demonstrated great technical expertise in *383 the design and manufacture of muskets, rifles, pistols, and swords. [198] But despite Coxe's expertise and dedication, the public arms program ran into trouble.

C. The Quality Controversy

Coxe's small office was overwhelmed by the procurement needs of the militia and the rapidly expanding standing army as tensions with Great Britain increased. Despite working seven days and nights a week, he still had to bring in his adult sons as unpaid assistants. [199] In 1810, Coxe fired the inspector in charge of quality control for the arms being acquired. [200] In a series of articles published in early 1811, Coxe's former Pennsylvania political associate, William Duane, charged that Purveyor Coxe had accepted large quantities of inferior firearms. [201] In his first article, Duane made the sweeping allegation "that arms we had seen, which had been manufactured for the MONEY (for we cannot say the use) of the United States, were better adapted to kill American soldiers into whose hands they should be put, than an enemy." [202] Coxe rejoined in the same issue, flatly denying the charges and noting that all arms were inspected prior to payment. [203] Besides, the purveyor was not an inspector:

It is impossible for the purveyor to be present at the inspections, which take place at various work shops, and public stores from Culpeper, in Virginia, to Exeter in New Hampshire .... There are probably sixty contractors, who have delivered arms .... [204]

*384 In subsequent installments, Duane relied on averments of the former inspector who was discharged for incompetence. Duane claimed that some rifle barrels lacked grooves (rifling), had grooves only six inches down the barrel, or had grooves that were too shallow. [205] Some were made with unfit Dutch locks (firing systems), or had stocks filled with glue and sawdust. [206] There were Hessian or Hanoverian arms (German imports) which needed inspecting. "There were nine hundred pairs of pistols, but not one pair fit for public service." [207] Duane did not provide any further details. [208]

In a series of articles addressed To the Public, Coxe responded to "the late unfounded attack upon the public muskets and private manufacturers of of muskets for the United States." [209] The muskets, rifles, and pistols in question were the equivalent of any manufactured in this country. Coxe stated that, thanks to the federal procurement program, the number of private armorers had increased ten-fold in just a few years. [210] Now, " t he rifle and pistol makers were constantly sending in arms," much to the purveyor's dismay. [211] Coxe urged the appointment of a rifle inspector, "as there is not a pattern rifle, to govern the workmen as in the case of the pistol." [212]

In the second installment of To the Public, Coxe claimed that he upheld "a strict and rigorous inspection, according to my rifle and pistol contracts; also a minute inspection 'in all parts' viz.: The riffling, the breechpins, the interior of the locks, & c." [213] Coxe's knowledge of firearms was from the perspective of a merchant, not an inspector, but he defended his discharge of the unqualified inspector. [214] The purveyor denied "the passing of one bad stand of arms or pair of pistols, by him." [215]

In Coxe's third article, he answered the charge that the American muskets were adopted "to kill American soldiers" with the fact that not a single musket had been proven bad. [216] Further, "the present inspector in this department has given a recent opinion in favor of the American muskets." [217]

*385 The fourth and final article of the series is filled with details about American pistol and rifle manufacture during that epoch. [218] The purveyor had encountered numerous problems in implementing the standardization of firearms among manufacturers. [219] In that article, Coxe listed some of the firearms makers from whom he had procured weapons; [220] most of whom were prominent manufacturers who produced both for state militia contracts and for the private market. [221] While defending his record, Coxe admitted the need for both technological and inspection improvements. [222]

*386 Months passed without further public controversy, but at the end of 1811, Duane renewed "The Military Establishment" series. [223] Duane insinuated that in America there were those who placed "a military force before its enemy with saw dust cartridges or balls too large for the calibre, or with rifles without touchholes, [224] and without spiral grooves, and of which 8 out of 18 burst on the proof with powder only of 135, whilst the true proof should be of the standard of 150." [225]

Coxe retorted in early 1812 with a broadside To the Public, which was distributed in Congress. [226] Coxe defended the particulars of the situation, [227] and then *387 Duane fired back. [228] Although Coxe responded, [229] he was not out of political trouble. Starting in 1810, his enemies in Congress, who were allies of Duane's faction in Pennsylvania Republican politics, had begun attempting to abolish the purveyorship. [230]

The Duane dispute quieted down, and Coxe continued the course of his work, soliciting "Home Made and Other Supplies," including "Muskets, Pistols, Rifles and Swords." [231] The outbreak of the War of 1812 in June of that year, however, occasioned a military reorganization, giving Coxe's congressional opponents the opportunity to eliminate the office of purveyor of public supplies by replacing it with a quartermaster's department. [232]

D. Coxe's Examination of the State of the American Firearms Industry

Despite relieving Coxe from the purveyor's office, the Madison administration continued to appreciate Coxe's talents. Madison appointed Coxe to the post of collector and supervisor of the revenue in Philadelphia. [233] Coxe eventually left this position for the larger salary of clerk of the Court of General Quarter Sessions for Philadelphia, a post he held until his retirement in 1818. [234] Coxe's most important contribution came at the request of Treasury Secretary Albert Gallatin, who assigned Coxe to analyze the condition of industry in the republic. [235]

While concerned with economic development of all types, Coxe devoted some attention to the area of firearms. His Statement of the Arts and Manufacturers of the United States of America, transmitted by President Madison to the Congress in 1814, included discussion of the arms industry. [236] Under the topic "Defence," Coxe noted *388 federal efforts both to restrain the export of arms [237] and to encourage their domestic manufacture. [238] In addition to the establishment of state and federal armories, contracts with monetary advances assisted the private manufacture of cannon, firearms, and swords. [239] Noting "very considerable attention to the repair and manufacture of arms" in the past twenty years, Coxe predicted "no irremovable obstacle to the manufacture of every species of arms ... of good qualities, and in sufficient quantities." [240] The tremendous progress in firearms and other military manufacture seemed to Coxe to be the greatest success story of American industry since 1775. [241]

In another part of the Statement, Coxe analyzed technological developments in the manufacture of cannon and muskets: [242] "Cannon are constantly manufactured, when demanded, to a very considerable extent, in the public armories of the nation, and of the States, and on contracts, and for sale to associations of citizens, and to individual purchasers, for use at home, or for exportation." [243] That cannon were marketed to the citizens is an interesting revelation given Coxe's prediction in 1787 that the armed populace would be more powerful than a standing army. [244] While noting improvements in the manufacture of small arms, Coxe advocated "a judicious and rigorous inspection" of military arms and pistols "to prevent deception, and its most evil consequences." [245] Perhaps William Duane had been right in his allegations concerning the poor quality of some contract arms. The problems with Coxe's public arms program illustrated, indirectly, the wisdom of the Second Amendment's protection of the possession of private arms as one means of arming the militia: A citizen buying a single firearm for his own use may be more likely to inspect the firearm in detail, and less likely to accept a poor quality firearm than a federal government inspector charged with inspecting hundreds of firearms. After all, the *389 inspector would not be using the firearms to defend his own life. The quality control advantage of citizens obtaining private arms individually may have outweighed the standardization advantages of mass procurement of public arms. [246]

Coxe retired in 1818 after having served three years as clerk of the Quarter Sessions in Philadelphia; he spent his remaining years as a writer. Coxe continued to correspond with Madison and his other political friends. [247] Jefferson, who had found Coxe's self-promotion to be offensively blunt while he was President, reconciled himself to Coxe's personality flaws, and lauded Coxe as "'a long tried public and personal friend' and 'a fellow laborer, indeed, in times never to be forgotten."' [248] Coxe also continued to write prolifically for public consumption, often on matters involving the right to bear arms. [249] During his retirement years, *390 Coxe was energized particularly by his opposition to the presidential ambitions of John Quincy Adams and by Adams's support of restrictive European laws regarding gun ownership for hunting. [250] Coxe argued in detail that Adams's position undermined the entire right to keep and bear arms, and thereby threatened republican government. [251]

Coxe's first retirement writing about firearms was Considerations Respecting the Helots [252] of the United States, African and Indian, under the pen- name "A Democratic Federalist." [253] In the first installment, Coxe noted that Pennsylvania excluded free Blacks from "the right to enter militia and to partake of public arms," and that the states "deny them the use of the public arms." [254] In contrast with the term "private arms," which Coxe used in discussing the Second Amendment when it was proposed in 1789, [255] "public arms" meant arms supplied by and returnable to the state, such as the arms that Coxe had provided as purveyor of public supplies. In 1820, Pennsylvania did not prohibit free blacks from having private arms for personal use, but did prohibit them from using public arms which were issued to some members of the militia. While all free whites were militia members, public arms likely were issued either to those who could not afford them, or to groups that trained together and wished to have arms with a common bore. [256]
In some states, free Blacks were entitled only to private arms, while in others-particularly in the South where the rights of free Blacks gradually were constricted during the antebellum years-to neither private nor public arms. [257] In the eighth installment of the series on the "Helots," Coxe noted the fears of the opponents of "the day when a million and a half of black people, generally in the state of the untutored Africans, were to be made free in power, election, arms, civil, and religious combination." [258]
*391 Abolitionist Coxe was quite accurate in recognizing the fears of opponents of civil rights for Blacks. In the Dred Scott case, [259] Chief Justice Taney insisted in the majority opinion that free Blacks could not be citizens because, if they were, they would have "the full liberty of speech in public and in private upon all subjects which a state's own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went." [260]

Coxe's last writings on the subject of the armed populace were his most extensive. Penned in opposition to John Quincy Adam's bid for election as president, Coxe's final testament revived a 1791 debate between John Quincy Adams and Thomas Paine. [261] A review of the 1791 debates about arms and game laws clarifies the context of Coxe's polemics of 1823.

One of the chief impediments to the dissolution of the monarchy in France in 1789 was centuries of weapons prohibitions. [262] In the 1791 bestseller, The Rights of Man, [263] which appeared when state legislatures still were debating the Bill of Rights in America, Thomas Paine described the situation just hours prior to the storming of the Bastille:

The event was to be freedom or slavery. On one side, an army of nearly thirty thousand men; on the other, an unarmed body of citizens; for the citizens of Paris, on whom the National Assembly must then immediately depend, were as unarmed and as undisciplined as the citizens of London are now.
....
Arms they had none, nor scarcely anyone who knew the use of them; but desperate resolution, when every hope is at stake, supplies, for a while, the want of arms. Near where the Prince de Lambesc was drawn up, were large piles of stones collected for building the new bridge, and with these the people attacked the cavalry.
... The night was spent in providing themselves with every sort of weapon they could make or procure: Guns, swords, blacksmiths' hammers, carpenters' axes, iron crows, pikes, halberts, pitchforks, spits, clubs, etc., etc. [264]

*392 The French people were victorious and quickly adopted a Declaration of Rights and a Constitution (although the people proved unable to maintain a stable and free government). As Paine noted, the new French republic's abolition of the game laws was the embodiment of free trade:

The French constitution says, there shall be no game laws, that the farmer on whose lands wild game shall be found (for it is by the produce of this lands they are fed) shall have a right to what he can take; that there shall be no monopolies of any kind-that all trade shall be free ....
... In England, game is made the property of those at whose expense it is not fed .... Is this freedom? [265]

John Quincy Adams attacked Paine's work in his anonymous Letters of Publicola, which defended the Constitution of England, including that nation's right "to establish a Government in hereditary succession" [266] and Parliament's right to enact game laws. [267] Adams severely castigated Paine's defense of the French Constitution, which placed beyond legislative control "universal freedom of the chase." [268] The letters originally were thought to have been penned by John Adams, who had defended the British Constitution in his Defence of the Constitutions [269] and Discourses on Davila, [270] the latter of which attacked the French Revolution. [271]

At last, in 1823, John Quincy Adams revealed his own authorship of the Letters of Publicola and renewed his criticism of "the inflammatory principles of Paine," whose works he called "worse than worthless." [272] Tench Coxe cited all of the above writings of the Adams and others as reflective of dangerous monarchical tendencies, which John Quincy Adams would represent if elected president. Under the pen-name "Sidney," Coxe also wrote an 1823 series entitled To the Friends of the Principles of the Constitution of the United States in the Philadelphia Democratic Press. [273] In *393 this series, Coxe criticized monarchical sympathizers in America, with particular reference to John Quincy Adams, including Adams's views about the deprivation of arms in France and England. [274]

In pre-revolutionary France, Coxe recalled:

not only were the commons or people of the third estate deprived of the ownership, possession and use of arms, but they were bound to leave their farming works at the command of the lord, in order to surround forests, and to keep therein, game which their Lord was about to hunt for sport. [275]

Coxe noted that Thomas Paine, in The Rights of Man, had "commended the repeal of the system and provisions of the hunting laws which had debased the people of France below the beasts of the fields, [and] held the commons or third estate in the ignorance and privation or non-possession of arms." [276] Under the forest and game laws of England, continued Coxe, "the people, the body of the commons, the inefficient 199 two hundredth parts are deprived of the right to own, keep and use arms. It is, Blackstone says, 'a tyranny,' and a Fatal tyranny on the commons of England." [277]

Coxe depicted John Adams and John Quincy Adams as apologists of the French and English game laws and, thus, as "opposed to the Liberties of France, England and the United States, on the all important subject of the militia, and its precious emanation, our real volunteer companies." [278] Like the British dictator Oliver Cromwell, President John Adams had increased the regular army and sought to dispense with the militia. An unarmed people could mean a monarchy in America, Coxe concluded: "Without a free omnipresent constitutional militia army unstrangled by game laws, ... a president could be quickly authorized to continue for life, and the office could be made to run in the persons of his sons ...." [279]

In the next serial, "Sidney" faulted the Adamses for their defense of the British constitution:

We proceed from the total destruction or rather prevention of the right to own and keep and use arms and consequently of self-defense and of the public militia power or force, the army of the constitutions of the United States, stated in our last number, to the still more precious object of the right of conscience. [280]

*394 For John Quincy Adams, charged Coxe, England's establishment of one church, coupled with "a deprivation of the ownership and use of arms, and other abuses of a like nature" were not sufficient to justify the calling of a convention by the people to change the British constitution. [281]

British impressment of sailors, which to Coxe was "personal, though not hereditary, slavery," was the subject of Coxe's following article. [282] "Coerced service" was anathema to American freedom, which instead depended on self-armed volunteers:

A western or southern volunteer militia officer or private, who had served, ... in the battles of Orleans ..., would illy brook the application to his person, of the British institution of sailors impressment, transferred into the constitution and practice of the United States, by the rapturous, or indiscriminate admirers and defenders of the constitution of England. [283]

Serving as secretary of state under President Monroe, John Quincy Adams stood on the traditional stepping-stone to the presidency-which Adams, in fact, would win in 1824-and so Coxe continued his anti-Adams articles. Written under the pen-name "Sherman," Coxe's most comprehensive analysis of the deprivation of the right to have and use arms was published as an address "To the People of the United States." [284] Again, the thrust of the article was the manner in which the game laws disarmed the commoners in England and France. [285] Coxe's purpose was to show the monarchical inclinations of John Quincy Adams in Adams' attacks on Thomas Paine.

Coxe began by reviewing the feudal oppressions of the rights of the chase in France, and Paine's praise for their abolition at the time of the revolution:

Mr. Paine's approbation of this humane, wise and liberal act (tho it is certain they put the right of the chase and of arms on nearly the same footing as ourselves in our constitutions) is among the specified grounds of Mr. Adams, junior, reply of 1791, to the rights of man .... [286]

*395 Coxe then analyzed the impact of England's game laws in 1791:

No man of less freehold estate than about 433 Dollars per Annum may own, keep and use a gun or engine to kill any of the wild beasts or birds, called game, on his own land. It is easy to see, that this game law deprives the great body of the people of England, Ireland, Wales and Scotland of all knowledge in the construction, use, care and value of arms; unfits them for the militia, gives undue weight to the army, navy, ... and other legalized forces, and to the armed and privileged nobility and gentry. [287]

Coxe's belief that the game laws of England had been used to disarm the English populace was shared widely in America; statements to that effect can be found in the three leading constitutional law treatises of the antebellum era. [288] That view, while influential, was wrong. Most Englishmen could not hunt legally, but they could own guns legally for non-hunting purposes such as personal defense and target shooting. [289]

*396 As Blackstone recognized, the game laws, which were meant to disarm the people, originated as part of a system of slavery: [290] "The Rustics or people of the country were every where in Europe forbidden by the German and Gothic invaders to carry arms." [291] So too, the ancient Britons, beset by successive conquerors, were "made and continued disarmed Serfs, Villeins or Slaves." [292]

The most despotic governments have, for these reasons, the most oppressive and cruel game laws. They are peculiarly opposite to the free spirit of such bodies as our American Constitution, the French National Assembly, and the courts of Spain, Portugal and their late American colonies. His own firearms are the second and better right hand of every freeman, and Mr. Adams, junior, has shown an utter disregard of them in this part of his reply to Mr. Paine.

So prudent, faithful and provident have our people and constitutions been, that we find in their precious bills of rights, schedules of duties, reasons of powers, and declarations recognizing the right to own, keep and use arms, provisions preventing and forbidding the legislatures to interfere with and to abrogate, that all important right of the citizens. [293]

 

Coxe continued, noting that Blackstone wrote that the English game laws were meant "to disarm the people" and resulted in "a Tyranny to the Commons." [294] Thus, Adams's opposition to Paine on the issue of game laws was tantamount to opposing Blackstone:

Why all this insensibility to the most odious and pernicious part of the regime of ancient tyranny by which the French unarmed people for many centuries were held in Chains. Why all this devotion to the ... British Constitution, by which that distinguished people have been held unarmed, since the kings and nobles of the Norman race rang the knell of their departed freedom in the sound of the curfew, sunk their liberties in a base oppressive villeinage, and riveted their chains by specious game laws, at once disarming them and tyrannously keeping the commons of England completely ignorant and helpless in arms. [295]

*397 As had been his practice since the Constitution was debated in 1787, Coxe sent copies of the "Sidney" articles, and possibly the "Sherman" series, to Madison, and also to Jefferson with explanatory letters. His purpose was to show how the Adamses, both father and son, labored "to the same end; the setting up the British, and the undermining the principles and character of our Constitution." [296] Neither Madison nor Jefferson was interested in attempting to influence presidential politics in their retirement years; Jefferson's declining health left him able to reply to only a few correspondents and, thus, Madison conveyed to Coxe Jefferson's apology "that it hurt him much to leave unnoticed an old friend." [297] In the fall of 1823, Coxe was still sending his articles to Jefferson and Madison. [298]

Tench Coxe died on July 16, 1824, a few months before John Quincy Adams was elected president. [299] He predeceased his old friend, Thomas Jefferson, and his old foe, John Adams, by two years. [300] While John Quincy Adams was wrong in his underestimation of the pernicious effect of the European game laws, Coxe was wrong in his estimation of Adams, whose 1825-1829 presidency was untouched by any trace of monarchy.

Coxe's retirement writings provide further detail about the scope of the individual right which Coxe first had elucidated four decades earlier. The right was, of course, personal, for "His own firearms are the second and better right hand of every freeman." [301] The duty and the right of militia service, along with the possible use of public arms, belonged to the freeman; persons not exercising full civil rights, such as Blacks and Indians, did not possess the right. Conversely, when the slaves were one day free, they too would enjoy the full right to arms, like other civil rights.

In late twentieth-century analysis of the Second Amendment, it is not uncommon to attempt to break the right to arms into separate units: militia service, personal *398 defense in the home, personal defense in public, defense against tyranny, hunting, and so forth. The attempt then is made to argue that only one unit, or only some units, comprise the real right to keep and bear arms, and that firearms ownership and possession for other purposes is outside the scope of the Second Amendment. At the most extreme, the argument is that the Second Amendment only protects the right to keep and bear arms for militia service, which is said to include only the National Guard. [302] Therefore, only a National Guardsman has a right to keep and bear arms and, even then, only when ordered to do so. In a less extreme version, the Second Amendment only addresses personal defense. [303] Thus, all citizens have a right to own guns, but none of them have a right to own guns useful for hunting but not for personal defense.

Coxe's writings show the error in the cafeteria approach to the Second Amendment: The right to hunt is integral to the right to own private arms; the right to private arms is an essential part of both "self-defense" and of the "public militia power." [304] To be deprived of arms is, in the long run, to be deprived of a meaningful role in the governance of the republic. While hunting might, at first, seem to have little to do with politics, there was a direct connection between anti-gun laws which affected a personal activity like hunting, and the advent of tyranny. Blackstone made exactly this point, as did each of the three major American constitutional treatise writers of antebellum America: Joseph Story, [305] William Rawle, [306] and St. George Tucker. [307] Coxe's views on the right to arms were thus securely within the mainstream of American legal theory.