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

III. Arming the Militia: Coxe in the Jefferson and Madison Administration

IV. Firearms, Game Laws, and Monarchy

Conclusion

Tench Coxe was the leading interpreter of the meaning of the right to keep and bear arms in the first four decades of the republic. His writings on the Constitution earned the approval of James Madison, and his services to the young American republic earned him important positions in the subcabinets of each of America's first four presidents.

As is typical in partisan editorializing, Coxe sometimes saw his own position clearly and failed to understand the complexity or the strength of his opponents' *399 position. Arguing that the armed populace could always over-awe a standing army, he belittled the anti-federalists for demanding a bill of rights. Likewise, based on the sympathy of the Adamses for the British Constitution, Coxe accused them of opposing the militia and the right to keep and bear arms. Yet, John Adams explicitly endorsed the militia and the right to arms. [308] While John Quincy Adams and his father might have been wrong for defending the European game laws, neither Adams ever displayed the slightest hostility towards the American right to keep and bear arms.

Although the leaders of the early republic engaged in bitter partisan conflict, there was no disagreement on the value of the right to keep and bear arms in a free state. Coxe is recognized today as a leading expositor of federalist doctrine, and his subsequent career as a public servant and as a political writer supply depth and nuance to the original understanding of the right to keep and bear arms in the early republic. [309]

To Coxe and his contemporaries, the Second Amendment guaranteed the right of every freeman to own, possess, carry, and use rifles, muskets, pistols, and other firearms for self-defense, hunting, and militia purposes, including resistance to oppression. Private arms were constitutionally protected, although uniformity for militia purposes suggested the wisdom of governmental purchase and distribution of public arms to the general populace. The right could be injured by disarmament laws, by over-reliance on standing armies, and by game laws that prevented individuals from learning how to use arms. Given the centrality of the right to arms in a free state, the development of the American firearms manufacturing industry was worthy of national encouragement.

The individual right to keep and bear arms went unquestioned in the early republic, but no one championed it as vigorously over such a long span of public service as did Tench Coxe. The sentiments of the generations that built the Constitution and the new nation are summarized aptly by Coxe's words written in retirement: "His own firearms are the second and better right hand of every freeman ...." [310]

Endnotes

[a1]. Attorney at Law, Fairfax, Virginia. Philosophy Professor at Tuskegee Institute, Howard University, and George Mason University, 1972-1981. J.D., Georgetown University, 1978; Ph.D., Florida State University, 1972. Author of FREEDMEN, THE FOURTEENTH AMENDMENT, AND THE RIGHT TO BEAR ARMS, 1866- 1876 (1998); A RIGHT TO BEAR ARMS: STATE AND FEDERAL BILLS OF RIGHTS AND CONSTITUTIONAL GUARANTEES (1989); THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT (1984).

[aa1]. Adjunct Professor of Law, New York University School of Law; Research Director, Independence Institute, Golden, Colorado, http://i2i.org; Associate Policy Analyst, Cato Institute, Washington, D.C.; J.D., University of Michigan Law School, 1985; B.A., Brown University, 1982. Author of SUPREME COURT GUN CASES (forthcoming 1999); GUNS: WHO SHOULD HAVE THEM? (1995); THE SAMURAI, THE MOUNTIE, AND THE COWBOY: SHOULD AMERICA ADOPT THE GUN CONTROLS OF OTHER DEMOCRACIES? (1992).
The authors would like to thank Paul H. Blackman, Ronald K. Noble, John Reed, Eugene Volokh, and Timothy Wheeler for helpful comments.

[1]. See BENJAMIN J. SHIPMAN, HANDBOOK OF COMMON LAW PLEADING 25, 418 (3d ed. 1923).

[2]. The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II.

[3]. See, e.g., HAROLD HUTCHESON, TENCH COXE: A STUDY IN AMERICAN ECONOMIC DEVELOPMENT 196-97 (1938). As this Article discusses, his economic vision included what proved to be a very successful effort to develop the nascent American firearms industry. See infra notes 162-68 and accompanying text.

[4]. See JACOB E. COOKE, TENCH COXE AND THE EARLY REPUBLIC 286-88 (1978).

[5]. See id. at 109-31; e.g., "A Freeman" (Tench Coxe), Essays I-III, in FRIENDS OF THE CONSTITUTION: WRITINGS OF THE "OTHER" FEDERALISTS 1787-1788, at 88-101 (Colleen A. Sheehan & Gary L. McDowell eds., 1998) [hereinafter FRIENDS OF THE CONSTITUTION]; "An American Citizen" (Tench Coxe), An Examination of the Constitution of the United States, in FRIENDS OF THE CONSTITUTION, supra, at 459-76.

[6]. See, e.g., Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 629-30 (1997) (Thomas, J., dissenting) (citing Coxe's Annapolis Convention analysis of the barriers to interstate trade); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 273 n.24 (1985) (Brennan, J., dissenting); Nixon v. Fitzgerald, 457 U.S. 731, 773 n.14 (1982) (White, J., dissenting) (citing a Coxe article on presidential immunity).

[7]. See generally FRIENDS OF THE CONSTITUTION, supra note 5 (presenting a representative collection of writings by Coxe, Dickinson, Webster, and others explaining and supporting the Constitution). Coxe's papers are available to the public on microfilm. See LUCY FISHER WEST, GUIDE TO THE MICROFILM OF THE PAPERS OF TENCH COXE IN THE COXE FAMILY PAPERS AT THE HISTORICAL SOCIETY OF PENNSYLVANIA Reels 113-14 (1977) [hereinafter PAPERS OF TENCH COXE] (providing guidance through the extensive collection of papers).

[8]. See Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 TENN. L. REV. 461, 463 (1995).

Perhaps surprisingly, what distinguishes the Second Amendment scholarship from that relating to other constitutional rights, such as privacy or free speech, is that there appears to be far more agreement on the general outlines of Second Amendment theory than exists in those other areas. Indeed, there is sufficient consensus on many issues that one can properly speak of a "Standard Model" in Second Amendment theory, much as physicists and cosmologists speak of a "Standard Model" in terms of the creation and evolution of the Universe. In both cases, the agreement is not complete: within both Standard Models are parts that are subject to disagreement. But the overall framework for analysis, the questions regarded as being clearly resolved, and those regarded as still open, are all generally agreed upon. This is certainly the case with regard to Second Amendment scholarship.

Id.

[9]. The following articles that mention Coxe comprise about a third of the total of "Standard Model" articles published since 1980: Clayton E. Cramer & David B. Kopel, Shall Issue: The New Wave of Concealed Handgun Laws, 63 TENN. L. REV. 679 (1995); Anthony J. Dennis, Clearing the Smoke from the Right to Bear Arms and the Second Amendment,29 AKRON L. REV. 57 (1995); Robert Dowlut, The Right to Arms, 36 OKLA. L. REV. 65 (1983); Robert Dowlut & Janet A. Knoop, State Constitutions and the Right to Keep and Bear Arms, 7 OKLA. CITY U. L. REV. 177, 207 n.128 (1982); Frank Espohl, The Right to Carry Concealed Weapons for Self-defense, 22 S. ILL. U. L.J. 151 (1997); Stephen P. Halbrook, Encroachments of the Crown on the Liberty of the Subject: Pre-Revolutionary Origins of the Second Amendment, 15 U. DAYTON L. REV. 91, 121 (1989); Stephen P. Halbrook, Rationing Firearms Purchases And The Right to Keep Arms: Reflections on The Bills of Rights of Virginia, West Virginia, and The United States, 96 W. VA. L. REV. 1 (1993); Stephen P. Halbrook, Second-Class Citizenship and the Second Amendment in the District of Columbia, 5 GEO. MASON U. CIV. RTS. L.J. 105, 123 (1995); Stephen P. Halbrook, The Jurisprudence of the Second and Fourteenth Amendments, 4 GEO. MASON L. REV. 1 (1981); Stephen P. Halbrook, The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment, 26 VAL. U. L. REV. 131, 140 (1991); Stephen P. Halbrook, To Keep and Bear their Private Arms: The Adoption of the Second Amendment, 1787-1791, 10 N. KY. L. REV. 13, 17, 29-30 (1982); Stephen P. Halbrook, What the Framers Intended: A Linguistic Analysis of the Right to "Bear Arms," 49 L. & CONTEMP. PROBS. 151, 155-56 (1986) [hereinafter Halbrook, what the Framers Intended]; David Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 HARV. J.L. & PUB. POL'Y 559, 609-10 (1986);;; Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204 (1983); David B. Kopel, Lethal Laws, 15 N.Y.L. SCH. J. INT'L. & COMP. L. 355 (1995) (book review); Thomas B. McAffee & Michael J. Quinlan, Bringing Forward the Right to Keep and Bear Arms: Do Text, History, or Precedent Stand in the Way?, 75 N.C. L. REV. 781 (1997); David E. Murley, Private Enforcement of the Social Contract: Deshaney and the Second Amendment Right to Own Firearms, 36 DUQ. L. REV. 15 (1997); L.A. Powe, Jr., Guns, Words, and the Constitutional Interpretation, 38 WM. & MARY L. REV. 1311, 1354-55 (1997); Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 TENN. L. REV. 461, 467-68 (1995); Robert Shalhope, The Armed Citizen in the Early Republic, 49 LAW & CONTEMP. PROBS. 125 (1986); Thomas J. Walsh, The Limits and Possibilities of Gun Control, 23 CAP. U. L. REV. 639 (1994)...
For a complete list of articles in the last decade adopting or contesting the Standard Model, see David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. REV. 1359, 1362 n.1 (1998).

[10]. See, e.g., George Anastaplo, Amendments to the Constitution of the United States, 23 Loy. U. Chi. L.J. 631 (1992); Carl T. Bogus, Race, Riots, and Guns, 66 S. Cal. L. Rev. 1365 (1993); Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L. Rev. 309 (1998); Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5 (1989); Samuel Fields, Guns, Crime and the Negligent Gun Owner, 10 N. Ky. L. Rev. (1982); Dennis A. Henigan, Arms, Anarchy and the Second Amendment, 26 Val. U. L. Rev. 107 (1991); Andrew D. Herz, Gun Crazy: Constitutional False Consciousness and the Dereliction of Dialogic Responsibility, 75 B.U. L. Rev. 57 (1995); John Dwight Ingram & Alison Ann Ray, The Right (?) To Keep and Bear Arms, 27 N.M. L. Rev. 491 (1997); Michael J. Palmiotto, The Misconception of the American Citizen's Right to Keep and Bear Arms, 4 J. Firearms & Pub. Pol'y 85 (1992); Warren Spannaus, State Firearms Regulation and the Second Amendment, 6 Hamline L. Rev. 383 (1983). The above list comprises virtually all of the anti-individual law review articles written about the Second Amendment since 1980. But see David C. Williams, The Militia Movement and Second Amendment Revolution: Conjuring with the People, 81 Cornell L. Rev. 879, 906 (1996) (citing Coxe for the proposition that the Founders intended the militia to be universal). Williams argues that because the government has failed to promote civic virtue through a universal militia, the Second Amendment right to bear arms has vanished. See David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 Yale L.J. 551 (1991); David C. Williams, The Unitary Second Amendment, 73 N.Y.U. L. Rev. 822 (1998). For a critique of Williams's argument, see Eugene Volokh, The Amazing Vanishing Second Amendment, 73 N.Y.U. L. Rev. 831 (1998).

[11]. Gary Wills, Why We Have No Right to Bear Arms, N.Y. REV. BOOKS, Sept. 21, 1995, at 62.

[12]. See id. at 72.

[13]. See Glenn Harlan Reynolds et al., To Keep and Bear Arms: An Exchange, N.Y. REV. BOOKS, Nov. 16, 1995, at 61, 62 (quoting "A Pennsylvanian" (Tench Coxe), FED. GAZETTE (Phila.), June 18, 1789, reprinted in THE ORIGIN OF THE SECOND AMENDMENT: A DOCUMENTARY HISTORY OF THE BILL OF RIGHTS IN COMMENTARIES ON LIBERTY, FREE GOVERNMENT AND AN ARMED POPULACE, 1787-1792, at 670-72 (David E. Young ed., 1995) [hereinafter THE ORIGIN OF THE SECOND AMENDMENT]).

[14]. See Letter from James Madison to Tench Coxe (June 24, 1789), reprinted in 12 THE PAPERS OF JAMES MADISON 257 (Robert A. Rutland et al. eds., 1977) [hereinafter MADISON PAPERS]; infra notes 103-107 and accompanying text.

[15]. See Reynolds et al., supra note 13, at 64. Wills then called Reynolds's use of Coxe "plain false." Id. Wills's use of invective rather than reason was unfortunate, but probably would not have surprised Coxe. Just after the election of 1800, during which Coxe had written article after article in support of Thomas Jefferson's successful candidacy, the pro-Federalist Philadelphia Gazette ran a large-type headline-with no supporting text-which shrieked "TENCH COXE IS INSANE." PHILA. GAZETTE, Dec. 9, 1800, quoted in COOKE, supra note 3, at 381.

[16]. 2 DICTIONARY OF AMERICAN BIOGRAPHY 488 (Allen Johnson ed., 1928).

[17]. See generally THE ORIGIN OF THE SECOND AMENDMENT, supra note 13 (including newspapers, pamphlets, records of public bodies, and other documents from the ratification period).

[18]. See Kopel, The Second Amendment in the Nineteenth Century, supra note 9.

[19]. See ALAN KORWIN & DAVID B. KOPEL, SUPREME COURT GUN CASES (forthcoming 1999); see also David B. Kopel, Communitarians, Neorepublicans, and Guns: Assessing the Case for Firearms Prohibition, 56 MD. L. REV. 438, 525- 41 (1997))) (discussing Supreme Court cases involving the Second Amendment).

[20]. See PAPERS OF TENCH COXE, supra note 7.

[21]. See 4 DICTIONARY OF AMERICAN BIOGRAPHY 484-85 (Alan Johnson & Dumas Malone eds., 1930).

[22]. See id. at 485.

[23]. See id. The Huguenots, having been disarmed by the French government, were being oppressed through the quartering of standing armies in their homes. Many of them were attempting to emigrate.

[24]. See id.

[25]. See id.

[26]. See DANIEL COXE, A DESCRIPTION OF THE ENGLISH PROVINCE OF CAROLANA, BY THE SPANIARDS CALL'D FLORIDA, AND BY THE FRENCH LA LOUISIANE (London, Oliver Payne 1722); 4 DICTIONARY OF AMERICAN BIOGRAPHY, supra note 21, at 485.

[27]. Id. at 583-84.

[28]. See id. at 584.

[29]. See id. One of the Chief Justice's daughters, Margaret, married Benedict Arnold. See 17 DICTIONARY OF AMERICAN BIOGRAPHY 116 (Dumas Malone ed., 1935).

[30]. See 18 DICTIONARY OF AMERICAN BIOGRAPHY 545 (Dumas Malone ed., 1935).

[31]. See id.

[32]. See 4 DICTIONARY OF AMERICAN BIOGRAPHY, supra note 21, at 488-89.

[33]. See COOKE, supra note 4, at 16-32.

[34]. Pa. Const. of 1776, art. I, § 13.

[35]. Id. art. II, § 5.

[36]. Id. art. III, § 43.

[37]. See COOKE, supra note 4, at 21-26.

[38]. Coxe's uncle by marriage, Chief Justice Edward Shippen, was a "moderate Loyalist." 17 DICTIONARY OF AMERICAN BIOGRAPHY, supra note 29, at 116. Coxe's counsin-once-removed, Benedict Arnold, was a Patriot general and then a traitor. See 1 DICTIONARY OF AMERICAN BIOGRAPHY 362-67 (Allen Johnson ed., 1928).

[39]. See HUTCHESON, supra note 3, at 4-10.

[40]. See id. at 8.

[41]. See Pa. Const. of 1776, art. I, § 13; id. at art. II, § 5; art. 3, § 43; see also generally Edward Dumbauld, 1 Am. J. Leg. Hist. 229 (1957) (noting that Pennsylvania protected a right to arms along with a right to hunt and fish because Pennsylvania usually was careful to preserve English constitutional precedent). Coxe's criticisms of John Quincy Adams, see infra notes 171-203 and accompanying text, follow the same reasoning as a 1776 Patriot article showing the connection between Britain's restrictive hunting laws and the disarmed British public's reliance on a standing army:

[T]he possession of hunting dogs, snares, nets, and other engines by unprivileged persons [in Britain], has been forbidden, and, under pretense of the last words, guns have been seized.... [T]his was not legal, as guns are not engines appropriated to kill game ....
... Thus ... the freeholders of moderate estates [are] deprived of a natural right. Nor is this all; the body of the people kept from the use of guns are utterly ignorant of the arms of modern war, and the kingdom effectually disarmed, except of the standing forces ....

Remarks on the Resolve, PA. EVENING POST, Nov. 5, 1776, at 2.

[42]. Howe's disarming policies were carried out by Joseph Galloway, a Pennsylvania Loyalist:
Galloway was requested to recruit his staunchest supporters and assume responsibility for taking a census of the city. He was instructed to ... apprehend any residents suspected of being dangerous to the security of the city, and confiscate any weapons in their possession. He selected personal henchmen in every ward to conduct the survey and take the necessary action against the disaffected rebels. JOHN W. JACKSON, WITH THE BRITISH ARMY IN PHILADELPHIA, 1777-1778, at 20 (1979).

[43]. Philadelphia's Pennsylvania Evening Post reported that shots were first fired by the British in Lexington when militiamen refused to obey an officer's command, "Disperse, you rebels, D-N you, throw down your arms, and disperse ...." PA. EVENING POST, May 11, 1775, at 3. The opening of hostilities in the countryside provoked British General Gage to proclaim that the private citizens of Boston, even though not involved in any way, must deliver their arms to the authorities.

The Post reported that "[t]he Governor and gentlemen of Boston have agreed to open the town, on condition of the inhabitants delivering up their arms to the Selectmen." PA. EVENING POST, May 2, 1775, at 2. The writer added: "The Governor engages to protect the lives and property of such as choose to stay. Those who choose to quit the town, to go where they please ...." Id. After collecting the arms, Gage refused to allow the people to leave Boston. A writer reported from New London:

By the post, who left the head quarters at Roxbury, last Monday three o'clock P.M. we learn that only two persons have been permitted to come out of Boston that day, that no more of the inhabitants would be permitted to leave the town for the present; and that on the same day a town meeting was to be held in Boston, when the inhabitants were determined to demand the arms they had deposited in the hands of the Selectmen, or have liberty to leave the town.

PA. EVENING POST, May 20, 1775, at 3.

Meanwhile, British troops began plundering houses in Boston; and Gage proclaimed martial law, ordering the Patriots to lay down their arms. See PA. EVENING POST, May 25, 1775, at 2; PA. EVENING POST, June 24, 1775, at 2. The following is a typical Patriot's response:

What terms do you hold out in this gracious proclamation? ... Now, Sir, waving all that may be said of your hypocrisy, cruelty, villany, treachery, perfidy, falsehood, and inconsistency, are you not ashamed to throw out such an insult upon human understanding, as to bid people disarm themselves till you and your butchers murder and plunder them at pleasure! We well know you have orders to disarm us, and what the disposition of the framers of these orders is, if we may judge from the past, can be no secret.

 

E. Ludlow, To the Vilest Tool of the most profligate and tyrannical Administration that ever disgraced a Court. Inhuman Butcher!, PA. EVENING POST, June 27, 1775, at 1.

An editorial on Gage's proclamation stressed that an armed populace must keep government in check:

The opposing an arbitrary measure, or resisting an illegal force, is no more rebellion than to refuse obedience to a highway-man who demands your purse, or to fight a wild beast, that came to devour you. It is morally lawful, in all limited governments, to resist that force that wants political power, from the petty constable to the king.... They are rebels who arm against the constitution, not they who defend it by arms.

"A Freeman," PA. EVENING POST, June 27, 1775, at 2.

[44]. See COOKE, supra note 4, at 62-70.

[45]. The society was the "first effective reform organization of its kind in the country." Id. at 92.

[46]. See id. "The bulk of the society's paperwork was handled by Coxe, who more than any other individual deserved credit for the accomplishments of the group." Id. at 93. Among the group's accomplishments were disseminating arguments against slavery to a national audience, assisting in the formation of anti-slavery societies in other states, providing free legal aid to free blacks in Pennsylvania and convincing the Pennsylvania Legislature to pass legislation so severely constricting slavery in Pennsylvania as to put it on the road to ultimate extinction. See id.

[47]. See id. Franklin also happened to be a very strong militia enthusiast. As a member of the Pennsylvania Assembly, Franklin wrote the Militia Act of 1755. See An Act for the Better Ordering and Regulating Such as are Willing and Desirous to be United for Military Purposes in Pennsylvania (1755), reprinted in 3 THE WORKS OF BENJAMIN FRANKLIN 78 (Jared Sparks ed., Boston, Hilliard, Gray, & Co. 1837) [hereinafter THE WORKS OF BENJAMIN FRANKLIN]. While the Assembly considered the bill, Franklin wrote a lengthy article touting the militia, which Franklin later credited for having made possible the bill's passage. See Benjamin Franklin, A Dialogue Between X, Y, & Z, Concerning the Present State of Affairs in Pennsylvania, reprinted in 3 THE WORKS OF BENJAMIN FRANKLIN, supra, at 84. After the Royal Governor vetoed a militia bill in 1764, Franklin wrote a scathing criticism of the governor's rationale. See "Veritas" (Benjamin Franklin), Remarks on a Particular Militia Bill Rejected by the Proprietor's Deputy, or Governor, Sept. 28, 1764, reprinted in 4 THE WORKS OF BENJAMIN FRANKLIN, supra, at 95.

[48]. See HUTCHESON, supra note 3, at 10-14; COOKE, supra note 4, at 96. In 1997, Justice Thomas cited Coxe's Annapolis convention analysis of the barriers to interstate trade. See Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 629-30 (1997) (Thomas, J., dissenting).

[49]. See HUTCHESON, supra note 3, at 15-16.

[50]. Letter from Richard Warick to Capt. John Stagg (Nov. 13, 1786), in PAPERS OF TENCH COXE, supra note 2, Reel 49, at 556. Subsequent correspondence indicated this contract was not fulfilled due to insufficient quantities with the same bore.

"A stand of arms consists of a musket, bayonet, cartridge-box and belt, with a sword. But for common soldiers a sword is not necessary." 1 NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 13 (New York, S. Converse 9th ed. 1996) (1828).

Two decades later, Coxe, as the federal government's purveyor of public supplies, would make a major effort to standardize militia firearms.

[51]. Letter from Robert Hazlehurst to Harrison and Nichols (Nov. 14, 1786), in PAPERS OF TENCH COXE, supra note 7, Reel 49, at 569.

[52]. Letter from Clarke and Nightingale to Coxe and Fraizer (Nov. 16, 1786), in PAPERS OF TENCH COXE, supra note 7, Reel 49, at 581.

[53]. See TENCH COXE, AN ENQUIRY INTO THE PRINCIPLES ON WHICH A COMMERCIAL SYSTEM FOR THE UNITED STATES SHOULD BE FOUNDED (Phila., Robert Aitken 1787).

[54]. See infra notes 147-246 and accompanying text.

[55]. See supra note 54.

[56]. See Edward C. Walterschied, To Promote Science and Useful Arts: The Background and Origin of the Intellectual Property Clause of the United States Constitution, 2 J. Intell. Prop. L., 1, 39-40 (1994).

[57]. See 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 128 (M. Jensen ed., 1976) [hereinafter DOCUMENTARY HISTORY]. The convention ended on September 17, 1787.

[58]. Letter from Tench Coxe to James Madison (Sept. 27, 1787), reprinted in 13 DOCUMENTARY HISTORY, supra note 57, at 251. See also An American Citizen I & II, PHILA. INDEP. GAZETTEER, Sept. 26, 28, 1787.

[59]. Letter from James Madison to Tench Coxe (Oct. 1, 1787), reprinted in 13 DOCUMENTARY HISTORY, supra note 57, at 251.

[60]. See COOKE, supra note 4, at 113.

[61]. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 273 n.24 (1985) (Brennan, J., dissenting).

[62]. Nixon v. Fitzgerald, 457 U.S. 731, 773 n.14 (1982) (White, J., dissenting). Another Supreme Court case in which Coxe figured-although as a character rather than a source of authority-involved his wife's inheritance from her father. See M'Ilvaine v. Coxe's Lessee, 8 U.S. (4 Cranch) 207 (1804), argued 6 U.S. (2 Cranch) 280 (1802).

[63]. COOKE, supra note 4, at 111.

[64]. See FRIENDS OF THE CONSTITUTION, supra note 5, at xiii-xvi, 88.

[65]. GARRY WILLS, THE FEDERALIST PAPERS BY ALEXANDER HAMILTON, JAMES MADISON, AND JOHN JAY viii (1982).

[66]. See Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409, 1443 (1990) (noting that Coxe wrote, consistently with Madison, that "'[m]ere toleration is a doctrine exploded by our general constitution"' (quoting Philip B. Kurland, The Origin of the Religious Clauses of the Constitution, 27 WM. & MARY L. REV. 839, 857 (1986))) (quoting TENCH COXE, A VIEW OF THE UNITED STATES OF AMERICA 103-04 (Phila. 1794)))); Michael W. McConnell, Tradition and Constitutionalism Before the Constitution, 98 U. ILL. L. REV. 17, 195 (1998).

[67]. See Herbert Hovenkamp, Judicial Restraint and Constitutional Federalism: The Supreme Court's Lopez and Seminole Tribe Decisions, 96 COLUM. L. REV. 2213, 2235 (1996). For some recent cites to Coxe, see Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725, 1804, 1808 (1996); Jill Elaine Hasday, Federalism and the Family Reconstructed, 45 U.C.L.A. L. REV. 1297, 1320 n.95 (1998).

[68]. An American Citizen IV, PHILA. INDEP. GAZETTEER, Oct. 21, 1787, reprinted in 13 DOCUMENTARY HISTORY, supra note 57, at 431, 433.

[69]. Id. at 434.

[70]. Id. at 435. It is interesting that the copy of the original 1787 edition of An Examination of the Constitution in the Jefferson Collection at the Library of Congress has this passage and no other marked at the margin, perhaps by the original reader, Thomas Jefferson. Former President Jefferson donated his personal library to the Library of Congress after the British burned the Library during the War of 1812.
The first three installments of An Examination of the Constitution of the United States appeared in the Philadelphia Independent Gazetteer, on September 26, 28, and 29, 1788. Around October 21 of the same year, the publishing company of Hall and Sellers (publishers of the Pennsylvania Gazette) reprinted the first three essays together with Coxe's fourth essay. See FRIENDS OF THE CONSTITUTION, supra note 5, at 459.

[71]. Letter from Tench Coxe to James Madison (Oct. 21, 1787), reprinted in 13 DOCUMENTARY HISTORY, supra note 57, at 437.

[72]. Letter from James Madison to Tench Coxe (Oct. 26, 1787), reprinted in 13 DOCUMENTARY HISTORY, supra note 57, at 437. Madison also praised Coxe's address, "To the Inhabitants of the Western Counties of Pennsylvania," for presenting arguments "as well timed as they are judicious." HUTCHESON, supra note 3, at 74 (quoting Letter from James Madison to Tench Coxe (July 30, 1788), reprinted in 11 MADISON PAPERS, supra note 14, at 210).

[73]. See 13 DOCUMENTARY HISTORY, supra note 57, at 431.

[74]. See 2 DOCUMENTARY HISTORY, supra note 57, at 5; Letter from James Madison to Tench Coxe (Jan. 3, 1788), reprinted in 10 MADISON PAPERS, supra note 14, at 349 (noting that Coxe's writings republished in Virginia "had a very valuable effect").

[75]. Coxe was by no means the only Pennsylvania federalist to make this argument. See, e.g., NOAH WEBSTER, AN EXAMINATION INTO THE LEADING PRINCIPLES OF THE FEDERAL CONSTITUTION (Oct. 16, 1787), reprinted in PAMPHLETS ON THE CONSTITUTION OF THE UNITED STATES, PUBLISHED DURING ITS DISCUSSION BY THE PEOPLE, 1787-1788, at 56 (Paul L. Ford ed., Da Capo Press 1968) (1888) [hereinafter PAMPHLETS].

Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.

Id.; see Foreign Spectator, PHILA. INDEP. GAZETTEER, Sept. 21, 1787, reprinted in 2 DOCUMENTARY HISTORY, supra note 57, at 384 (Microform Supp.) (arguing that "even the power of a veteran army could not subdue a patriotic militia ten times its number"). See also A Supplement to the Essay on Federal Sentiments, PHILA. INDEP. GAZETTEER, Oct. 23, 1787, reprinted in 2 DOCUMENTARY HISTORY, supra note 57, at 801 (Microform Supp.) ("The whole personal influence of the Congress, and their parricide army could never prevail over a hundred thousand men armed and disciplined, owners of the country ....").

[76]. 2 DOCUMENTARY HISTORY, supra note 57, at 509.

[77]. Id. at 336.

[78]. See id. at 22 (noting that the delegates to the Pennsylvania Convention ratified the Constitution on December 12, 1787, by a vote of 46 to 23).

[79]. See id. at 617-40.

[80]. Id. at 623-24. Criticizing the author of the minority report from the Pennsylvania ratifying convention for the federal Constitution, Gary Wills claims that the report's author erred by placing militia rights and hunting rights in the same proposed amendment. See Wills, supra note 14. But the Pennsylvania minority was, in fact, properly combining militias and hunting into a unitary arms guarantee, just as the 1776 Pennsylvania State Constitution had done. See supra notes 34-36 and accompanying text. Perhaps it is Wills, and not the Pennsylvania Founders, who is in error.

[81]. "Philanthropos" (Tench Coxe), To The People of the United States, PA. GAZETTE, Jan. 16, 1788, reprinted in 15 DOCUMENTARY HISTORY, supra note 5, at 391-93.

[82]. Compare this line with James Harrington's The Commonwealth of Oceana, a major work of Whig political theory from the previous century: "The hand which holds this sword is the militia of a nation; and the militia of a nation is either an army in the field, or ready for the field upon occasion." James Harrington, The Commonwealth of Oceana (London 1656), reprinted in THE POLITICAL WORKS OF JAMES HARRINGTON 170 (J.G.A. Pocock ed., 1977).

[83]. "A Pennsylvanian" (Tench Coxe), To The People of the United States, PA. GAZETTE, Feb. 20, 1788, at 2, reprinted in 2 DOCUMENTARY HISTORY, supra note 57, at 1778-80 (Microform Supp.). Other installments are in PA. GAZETTE, Feb. 6, 13, 27, 1788.

[84]. See COOKE, supra note 4, at 118.

[85]. The Federalist Papers were first published in New York City newspapers between October 27, 1787 and April 2, 1788. See 13 DOCUMENTARY HISTORY, supra note 57, at 490.

[86]. THE FEDERALIST NO. 29, at 179 (Alexander Hamilton) (Isaac Kramnick ed., 1987). "Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped ...." Id. at 178-79.

[87]. Letter from James Madison to Tench Coxe (Jan. 30, 1788), reprinted in 10 MADISON PAPERS, supra note 14, at 445.

What goes by name of consolidation in Pena. is I suspect at the bottom of the opposition to the New Govt. almost every where; and I am glad to find you engaged in developing the subject. I inclose some papers [The Federalist Nos. 45 and 46] in which it has been taken up here, that if any hints are contained in them, they may be pursued in your enquiry.

Id.

[88]. THE FEDERALIST NO. 46, supra note 86, at 301 (James Madison).

[89]. Id. Madison added: "Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms." Id. Cf. WEBSTER, supra note 75 (noting that most people in Europe are disarmed, thereby allowing standing armies to rule).

[90]. Other Coxe writings in this period were published in newspapers in other states. For example, Madison distributed Coxe's "An American," Address to the Members of the Convention of Virginia, PA. GAZETTE, May 21, 28, 1788, in 3 AMERICAN MUSEUM 426-33, 544-48 (1788), in Virginia. See COOKE, supra note 4, at 121 & n.34. Anonymous Coxe articles also appeared in the Federal Gazette during 1788 to 1790. See id.

It is not known whether Coxe was "Philodemos," who wrote: "Every free man has a right to the use of the press, so he has to the use of his arms." PA. GAZETTE, May 7, 1788, reprinted in 2 DOCUMENTARY HISTORY, supra note 57, at 2579 (Microform Supp.). A similar link of a free press and the use of arms appears in Coxe's observation that "the efforts of industry and genius in the German nation have been successfully applied to subjects of the most useful and curious nature, and among the several proofs of their disposition and capacity of such pursuits, are the invention of GUN-POWDER ... and that of TYPE- FOUNDING." "Philanthropos," To the Friends of Religion, Morality and Useful Knowledge, PA. GAZETTE, Aug. 6, 1788, at 2.

In a society in which "Gun-Smiths" marched in the July 4th parade, see PA. GAZETTE, July 9, 1788, at 3, the benefits of firearms in the hands of the public were undisputed. In one of the same issues in which "A Pennsylvanian" appeared, the editor lauded the role of citizens, "having armed themselves" with muskets, apprehending violent criminals: "Future villains may now see, however safe they may think themselves by being armed in the pines, that there are men who will brave the greatest danger to take them." PA. GAZETTE, Feb. 27, 1788, at 3.

[91]. TENCH COXE, AN EXAMINATION OF THE CONSTITUTION FOR THE UNITED STATES OF AMERICA 18-19, in PAMPHLETS, supra note 75, at 147-48.

[92]. Id.

[93]. See "A Freeman" (Tench Coxe), To the Minority of the Convention of Pennsylvania, PA. GAZETTE, Jan. 23, 1788, reprinted in FRIENDS OF THE CONSTITUTION, supra note 5, at 92; "A Freeman" (Tench Coxe), To the Minority of the Convention of Pennsylvania, PA. GAZETTE (Phila.), Jan. 30, 1788, reprinted in FRIENDS OF THE CONSTITUTION, supra note 5, at 93. See also "An American Citizen" (Tench Coxe), An Examination of the Constitution of the United States (Phila., Hall & Sellers 1788), reprinted in FRIENDS OF THE CONSTITUTION, supra note 5, at 475 (noting that states, not the federal government, would control the appointment of various important posts, including "Officers of the Militia").

[94]. See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 340-42 (M. Farrand ed., 1911) (describing Roger Sherman's opposition to a bill of rights at its initial proposition by George Mason).

[95]. See STEPHEN P. HALBROOK, THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT 68 (1984).

[96]. See, e.g., James Wilson, State House Speech (Oct. 6, 1787), in 2 DOCUMENTARY HISTORY, supra note 57, at 168 (arguing that, because Congress lacked an enumerated power to regulate the press, a proposed amendment guaranteeing freedom of the press would be superfluous).

[97]. See "An American Citizen" (Tench Coxe), Thoughts on the Subject of Amendments, PA. GAZETTE, Dec. 3, 10, 24, 31, 1788.

[98]. See COOKE, supra note 4, at 126-28.

[99]. See THE ORIGIN OF THE SECOND AMENDMENT, supra note 13, at x1-x1ii.

[100]. 1 ANNALS OF CONG. 434 (Joseph Gales ed., 1834). As adopted, the following became the Second Amendment to the U.S. Constitution more concisely stated: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." U.S. Const. amend II. As to the deleted clause concerning the religiously scrupulous, see Coxe's undated manuscript on the invalidity of pacifist arguments against support for a militia in Papers of Tench Coxe, supra note 7, Reel 114, at 38.

[101]. See COOKE, supra note 4, at 132-33.

[102]. Id. at 137-39, 150-51.

[103]. See "A Pennsylvanian" (Tench Coxe), Remarks on the First Part of the Amendments to the Federal Constitution, FED. GAZETTE (Phila.), June 18, 1789, reprinted in THE ORIGIN OF THE SECOND AMENDMENT, supra note 13, at 670- 72.

[104]. Id. The amendments had been published in the issue of June 16, 1789. See FED. GAZETTE (Phila.), June 16, 1789, at 2. The first page of newspapers of the time normally was reserved for advertisements and official notices.

[105]. See Letter from Tench Coxe to James Madison (June 18, 1789), reprinted in 12 MADISON PAPERS, supra note 14, at 239-40.

[106]. Letter from James Madison to Tench Coxe (June 24, 1789), reprinted in 12 MADISON PAPERS, supra note 14, at 257.

[107]. Id.

[108]. See N. Y. PACKET, June 23, 1789, at 2.

[109]. MASS. CENTINEL, July 4, 1789, at 1.

[110]. Coxe thereby reversed his early stand that there was no need to list rights which Congress had no power to infringe:

It has been argued by many against a bill of rights, that the omission of some in making the detail would one day draw into question those that should not be particularized. It is therefore provided, that no inference of that kind shall be made, so as to diminish much less to alienate an ancient tho' unnoticed right, nor shall either of the branches of the Federal Government argue from such omission any increase or extension of their powers.

"A Pennsylvanian" (Tench Coxe), Remarks on the Second Part of the Amendments, FED. GAZETTE (Phila.), June 30, 1789, at 2, reprinted in THE ORIGIN OF THE SECOND AMENDMENT, supra note 13, at 674-76. As adopted, the Ninth Amendment to the Constitution provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. Const. amend. IX.

A review of subsequent issues in the above newspapers reveals agreement with Coxe's analysis that the Amendments guaranteed freedoms which Congress had no authority to infringe anyway. "One of the People" wrote, in the Federal Gazette, that "the very idea of a bill of rights" is "a dishonorable one to freemen." "One of the People," On a Bill of Rights, FED. GAZETTE (Phila.), July 2, 1789, reprinted in THE ORIGIN OF THE SECOND AMENDMENT, supra note 13, at 676-78.

What should we think of a gentlemen, who, upon hiring a waitingman, should say to him-"my friend, please take notice, before we come together, that I shall always claim the liberty of eating when and what I please, of fishing and hunting upon my own ground, of keeping as many horses and hounds as I can maintain, and of speaking and writing any sentiments upon all subjects."

Id. In short, as a mere servant, the government had no power to interfere with individual liberties in any manner absent a specific delegation: "[A] master reserves to himself ... every thing else which he has not committed to the care of those servants." Id.

[111]. See COOKE, supra note 4, at 242. As Commissioner of the Revenue, Coxe received what appeared to be an attempted bribe regarding the construction of a lighthouse off of Cape Hatteras in North Carolina. See COOKE, supra note 4, at 294-95. Coxe promptly reported the attempted bribe to Attorney General Ingersoll, and the case eventually made its way to the United States Supreme Court. See United States v. Worrall, 2 U.S. 384 (1798) (discussing venue for federal crimes). At the time Coxe rejected the bribe, he was "financially pressed" by the need to support his large family, as Coxe would be for most of the rest of his life. See HUTCHESON, supra note 3, at 41.

[112]. See COOKE, supra note 4, at 242-44.

[113]. Coxe made his views known in a forcefully worded letter to Hugh Henry Brackenridge, a prominent author in western Pennsylvania (and a future chief justice of the Pennsylvania Supreme Court). See HUTCHESON, supra note 2, at 36 & n. 132. For more on the Whiskey Rebellion, see Gerald Carson, Watermelon Armies and Whiskey Boys, in RIOT, ROUT, AND TUMULT: READINGS IN AMERICAN SOCIAL AND POLITICAL VIOLENCE 70 (Roger Lane & John J. Turner, Jr. eds., 1978).

[114]. See Henigan, supra note 10, at 110 ("[The Standard Model] amounts to the startling assertion of a generalized constitutional right of all citizens to engage in armed insurrection against their government.").

[115]. See COOKE, supra note 4, at 244 (noting Coxe's support for the principle of obedience to the law during the uprising).

[116]. TENCH COXE, A VIEW OF THE UNITED STATES OF AMERICA IN A SERIES OF PAPERS WRITTEN AT VARIOUS TIMES, IN THE YEARS BETWEEN 1787 AND 1794 (Augustus M. Kelley ed., Bookseller 1965) (1794).

[117]. See COOKE, supra note 4, at 212-14.

[118]. See HUTCHESON, supra note 3, at 143. Unfortunately, Coxe failed to foresee the impact that cotton cultivation would have on his hopes for the abolition of slavery.
Focusing on some of Coxe's earlier writings, technology historian Leo Marx ranks Coxe as one of the greatest American political economists for daring to challenge "the whole body of respectable economic theory," which claimed that America never could become an important manufacturing nation. LEO MARX, MACHINE IN THE GARDEN: TECHNOLOGY AND THE PASTORAL IDEAL IN AMERICA 153 (1967)... Marx argues that Coxe was one of the very first to understand how America-with vast natural resources and a relatively small labor supply-enjoyed ideal conditions for the rapid development of technology. See id. at 153- 63.

[119]. COXE, supra note 116, at 272.

[120]. Id. at 273.

[121]. See id. at 278.

[122]. Id.

[123]. See TENCH COXE, OBSERVATIONS ON THE AGRICULTURE, MANUFACTURES, AND COMMERCE OF THE UNITED STATES IN A LETTER TO A MEMBER OF CONGRESS 32-33 (N.Y., Francis Childs & John Swaine 1789), cited in HUTCHESON, supra note 3, at 94.

[124]. See COXE, supra note 116, at 334 ("We have actually almost ceased to import ... gunpowder ...."). Coxe's book is loaded with economic data. Between October 1, 1790 and September 30, 1791, the United States exported 160 dozen muskets and 25,854 pounds of gunpowder. See id. at 406, 408. During the next fiscal year, the United States exported 42 dozen muskets, all from New York, plus 467 quarter casks for gunpowder from Massachusetts, Connecticut, New York, Pennsylvania, and Maryland. See id. at 415-16. In the 1792-1793 fiscal year, the United States exported 1,286 quarter casks of gun powder. See id. at 473.

Tariff schedules for imports were as follows: firearms not otherwise enumerated (starting on July 1, 1794) 15% ad valorum; gunpowder, free from May 22, 1794 until May 22, 1795, thereafter 10%; lead and musket ball, free for the same time as gunpowder, thereafter 1 cents per pound; muskets and fire locks ["fire lock" is an alternative term for "matchlock," a type of long gun in which the shooter ignites the gunpowder by lighting a match to a short fuse] with bayonets fitted to frame, free for the same time as gunpowder, thereafter 15%; muskets and fire locks without bayonets, 15%; pistols, free for the same period as gunpowder, thereafter 15%. See id. at 459-65.

One of Coxe's essays described how a model town might be built on the Susquehanna River, using money raised in a capital subscription. Among the economic units to be constructed in the town would be "Two boring and grinding mills for guns, scythes, sickles, &c." and "Two gun smith's shops." Id. at 390-91. Pointing to the vast tracts of unsettled forest land in the United States, Coxe suggested that they could be cleared speedily and settled by persons making, among other products, "gun-stocks and other military implements for the sea and land service." Id. at 450.

In an essay describing "the principal facts, which characterize the American people," with the intent to make America appear attractive to immigrants, Coxe on one page extolled the complete freedom of religion, and on the next page bragged that "[t]he production and manufactures of military supplies and articles, enable the United States to derive from their own resources, ships of war, gun-powder, cannon and musket-balls, shells and bombs, cannon and carriages, muskets, rifles and cutlasses ... holsters," and various other military equipment. Id. at 427, 438-39.

[125]. See COOKE, supra note 4, at 293-308. While out of federal office, Coxe served as secretary of the Pennsylvania Land Office. In that capacity, he did an outstanding job of protecting the rights of farmers and settlers against the illegal encroachments of speculators. See id. at 365-70; see also Holland Land Co. v. Coxe, 4 U.S. (4 Dall.) 170 (1803) (discussing the legality of land claims rejected by Coxe in his capacity as secretary).

[126]. See COOKE, supra note 4, at 338-39.

[127]. See id. at 344-47.

[128]. See id. at 344-45, see generally RICHARD N. ROSENFELD, AMERICAN AURORA: A DEMOCRATIC-REPUBLICAN RETURNS: THE SUPPRESSED HISTORY OF OUR NATION'S BEGINNINGS AND THE HEROIC NEWSPAPER THAT TRIED TO REPORT IT (1998).

[129]. See AURORA (Phila.), May 21, 1799, at 2.

[130]. Id.

[131]. Id.

[132]. Id. at 2.

[133]. "Mentor," AURORA (Phila.), May 21, 1799, at 2. A lengthy account of the Federalist riot was printed in the Aurora, May 24, 1799, at 2.

[134]. See AURORA (Phila.), May 27, 1799, at 2; AURORA (Phila.), June 29, 1799, at 2 (discussing the danger of a standing army to free press).

[135]. See AURORA (Phila.), June 21, 1799, at 2.

[136]. See AURORA (Phila.), June 24, 1799.

[137]. See Tench Coxe, To the Public, AURORA (Phila.), Oct. 6, 1800, at 2.

[138]. AURORA (Phila.), Sept. 6, 1800, at 2.

[139]. Id.

[140]. Id.

[141]. See id.

[142]. Id.

[143]. Id.

[144]. See, e.g., Coxe et al., To the Republican Citizens of the State of Pennsylvania, AURORA (Phila.), Sept. 27, 1800, at 2 ("It is greatly to be regretted, too, that so extensive an authority to levy regular troops relaxed the attention to the Militia, and (with the new and extensive plan of volunteers) tended to diminish the wholesome influence of that Constitutional force."); Tench Coxe, Address to the Citizens of the County of Lancaster, AURORA (Phila.), Sept. 18, 1800, at 3 (warning against the dangers of an army and a monarchy).

Coxe could have been the author, or at least agreed with the sentiments of an article signed "FACT" and entitled The Touchstone, No. II, AURORA (Phila.), Aug. 12, 1800, at 2, which argued:

With five millions of people America had a million of militia, a million of men able to bear arms. A foreigner, knowing of this grand constitutional mean of defence, would at once suppose that the President, as constitutional commander in Chief of the public force, had labored night and day to prepare the militia for the much talked of invasion by the French.

Id. The same author continued to report that Adams did nothing to check the army with the militia: "Mr. Adams before his Installation promised attention to the militia. 'A well regulated militia is necessary to the security of a FREE state,' says the fourth [proposed] Amendment of the Constitution." Id. In other nations, mercenaries conjoin "the people (when unarmed and undisciplined) to kick the Beam." Id. In other words, mercenaries have an advantage over unarmed citizens. The purse, the executive, and the sword "require a well regulated militia to counterbalance and check them." Id. See also Tench Coxe, Address to the Citizens of the County of Lancaster, AURORA (Phila.), Sept. 18, 1800, at 3 (echoing these arguments).

[145]. See "A Constitutionalist" (Tench Coxe), The Friends of the Constitution to the People of the United States, Nos. 1-7, AURORA (Phila.), Sept. 19, 21, 22, 24, 25, 29, 30, 1800.

[146]. Coxe failed to address Adams's defense of the right to have and use arms for resistance to oppression and for individual self-defense. Compare Tench Coxe, The Friends of the Constitution to the People of the United States, AURORA (Phila.), Sept. 21, 1800, at 2, with 3 JOHN ADAMS, A DEFENCE OF THE CONSTITUTIONS OF GOVERNMENT OF THE UNITED STATES OF AMERICA 471-75 (Boston, Freeman 1983) (1787-1788). In A Defence of the Constitutions, Adams, troubled by Shays' Rebellion, argued for a system of government using checks and balances, in which no one force-not even the people-would have unrestrained power. One implementation of the checking principle was that there should be a universal militia; this popular force should not be under the command of the popular branch of government (the legislature), but under the sole command of the executive. Adams described "arms in the hands of citizens, to be used at individual discretion" only for "private self-defence" as consistent with good government, but mass use of arms when not under executive control as destructive of government. See id.

[147]. See COOKE, supra note 4, at 158. Coxe met Rush through their mutual work in the Pennsylvania anti-slavery society. See id. at 92-93.

[148]. See HUTCHESON, supra note 3, at 28-29.

[149]. While Jefferson was at first inclined to give Coxe a job, the presumptuous tone of Coxe's office-seeking letters alienated Jefferson. See id. at 392-99. Although the two men resumed a professional relationship when Coxe joined the Jefferson administration, the relationship remained cool. See id. at 458.

[150]. See HENRY J. KAUFFMAN, THE PENNSYLVANIA-KENTUCKY RIFLE 82 (1960). Like Coxe, Gallatin considered the right to arms one of the many human rights protected by the Bill of Rights: "The whole of that Bill is a declaration of the right of the people at large or considered as individuals .... It establishes some rights of the individual as unalienable and which, consequently, no majority has a right to deprive them of." Letter from Albert Gallatin to Alexander Addison (Oct. 7, 1789) (on file with the New York Historical Society), quoted in HALBROOK, supra note 95, at 225 n.169.

[151]. Coxe's appointment was ironic. As Alexander Hamilton's Commissioner of Revenue, Coxe had been ordered to supervise the purchase of supplies for the Army and for the state militias involved in suppressing the Whiskey Rebellion. Although Coxe continued to support strongly the crushing of the Pennsylvania insurrection, he resented Hamilton's giving him a task with considerably less policy influence than Coxe was used to. Hamilton's decision, and Coxe's angry reaction, led to the final break between Coxe and Hamilton; the relationship had been under strain due to Coxe's growing friendship with Thomas Jefferson, and Coxe's failure to accept that he was Hamilton's subordinate, not his equal. See COOKE, supra note 4, at 262-64. As a result of the conflict in the Treasury Department, Congress created the post of Purveyor of Public Supplies. The first person to serve in the job was Tench Francis (Coxe's grandfather); although Francis had built a distinguished record of public service, see supra notes 27-28 and accompanying text, he was past his prime, and unable to organize the purveyor's office efficiently. See COOKE, supra note 4, at 413.

[152]. See COOKE, supra note 4, at 404-87.

[153]. See id. at 405.

[154]. See id. at 415.

[155]. See id. at 413-31.

[156]. President Madison was just as ardent as his predecessor in wanting an armed militia. In Madison's First Inaugural Address, he announced his goal "to keep within the requisite limits a standing military force, always remembering that an armed and trained militia is the firmest bulwark of republics-that without standing armies their liberty can never be in danger, nor with large ones safe." James Madison, First Inaugural Address (Mar. 4, 1809), in JAMES MADISON, 1751-1836, at 37 (Ian Elliot ed., 1969). In his Second Annual Message to Congress, Madison praised the armament program, and urged that training be increased:

These preparations for arming the militia having thus far provided for one of the objects contemplated by the power vested in Congress with respect to that great bulwark of the public safety, it is for their consideration whether further provisions are not requisite for the other contemplated objects of organization and discipline.

James Madison, Second Annual Message to Congress (Dec. 5, 1810), in JAMES MADISON, 1751-1836, supra, at 56.

[157]. See Letter from Tench Coxe to Thomas Jefferson (Jan. 1807), reprinted in JEFFERSON PAPERS (on file in the Library of Congress).

[158]. See id.

[159]. The Assembly of the Notables in Paris in May 1788 was one of the failed efforts at reform that led to the French Revolution.

[160]. Letter from Tench Coxe to Thomas Jefferson (Jan. 1807), reprinted in JEFFERSON PAPERS, supra note 157, at 2-3.

[161]. Id. at 3.

[162]. Id. at 4.

[163]. Id. at 5.

[164]. Id. at 6.

[165]. Letter from Thomas Jefferson to Tench Coxe (Mar. 17, 1807), in JEFFERSON PAPERS, supra note 157.

[166]. "A stand of arms consists of a musket, bayonet, cartridge-box and belt, with a sword. But for common soldiers a sword is not necessary." 1 NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 13 (New York, S. Converse 9th ed. 1996) (1828).

[167]. Letter from Thomas Jefferson to Tench Coxe (Mar. 17, 1807), in JEFFERSON PAPERS, supra note 157.

[168]. Id.

[169]. See id.

[170]. See TENCH COXE, THOUGHTS ON THE SUBJECT OF NAVAL POWER IN THE UNITED STATES OF AMERICA: AND ON CERTAIN MEANS OF ENCOURAGING AND PROTECTING THEIR COMMERCE AND MANUFACTURE (Phila. 1806).

[171]. Id. at 6.

[172]. See id.

[173]. TENCH COXE, THOUGHTS ON THE SUBJECT OF NAVAL POWER IN THE UNITED STATES OF AMERICA: AND ON CERTAIN MEANS OF ENCOURAGING AND PROTECTING THEIR COMMERCE AND MANUFACTURE NO. II, at 1 (Phila. 1807). This also was published under pen-name "Pacificus" in the Philadelphia Democratic Press on May 29, 1807.

[174]. See supra notes 34-36 and accompanying text.

[175]. See supra notes 41-43 and accompanying text.

[176]. See supra notes 79-80 and accompanying text.

[177]. COXE, supra note 173, at 1.

[178]. See infra notes 273-77, 284-95 and accompanying text.

[179]. COXE, supra note 173, at 2. Nos. III-VI were printed in the Philadelphia Democratic Press on June 1, 3, 5, 8, 1807.
By the time of his 1807 articles on naval power, Coxe found, in a new periodical, an agreeable philosophical stance that would result in the periodical being the main outlet for expression of Coxe's views for the next decade and a half. John Binns, editor of the Philadelphia Democratic Press, formulated this stance in the first issues:

That every capable man in the Union should be armed and disciplined, so as to be ready to rise en mass, and hurl destruction on the foe who should dare to pollute our shores with hostile feet is a truth which it shall be the pride and pleasure of the Editor frequently to inculcate.

John Binns, To the Public, DEMOCRATIC PRESS (Phila.), Mar. 30, 1807, at 1. See also Defence of the Seaports, DEMOCRATIC PRESS (Phila.), Apr. 3, 1807, at 3 (supporting the "provision of the instruments, implements, and utensils of defence for the militia in their vicinity: Cannon, battering and field, iron and brass; ovens for heating balls; mortars and shells; horse artillery; muskets, rifles, pistols, swords and bayonets"); Standing Army, DEMOCRATIC PRESS (Phila.), June 8, 1807, at 2 (advocating that the sword rules). That arms were to be handled only in a safe manner was implicit in such headlines as "Careless Use of Firearms-AGAIN," DEMOCRATIC PRESS (Phila.), May 25, 1807, at 2 (describing boys hunting in New York, and a half-cocked firearm discharging, killing a fourteen-year-old boy).

[180]. Letter from Thomas Jefferson to Tench Coxe (Sept. 21, 1807), in JEFFERSON PAPERS, supra note 157.

[181]. Act of Apr. 23, 1808, 2 Stat. 490 (1808).

[182]. See id; Act of Feb. 24, 1807, 2 Stat. 419 (1807).

[183]. See COOKE, supra note 4, at 430.

[184]. See id.

[185]. See FELICIA DEYRUP, ARMS MAKERS OF THE CONNECTICUT VALLEY 33-46 (Vera Brown Holmes & Hans Kohn eds., 1948); S. N. D. NORTH & RALPH NORTH, SIMEON NORTH: FIRST OFFICIAL PISTOL MAKER OF THE UNITED STATES 73-77 (1913).

When Tench Coxe, at the close of the Revolution, turned his prophetic eye and his practical instinct to the manufacturing development of his country, he was thwarted in his efforts by the impossibility of obtaining the machinery with which to start the enterprises he had in mind.... Colonel North devised and worked out the principle of interchangeable parts .... He applied and developed it in the manufacture of pistols ....

Id. at 90-91.

Extensive information on Coxe's dealings with the firearms manufacturers is presented in 1 JAMES E. HICKS, NOTES ON UNITED STATES ORDNANCE 29-39 (1940).

[186]. See, e.g., Michael Bellesiles, The Origins of Gun Culture in the United States, 1760-1865, 83 J. Am. Hist. 425, 428-34, 454 (1996) (arguing that Madison formulated the Amendment as a political response to anti-federalists and attempted to deliver on his promise of a state- controlled militia supported by the federal government).

[187]. For example, Americans today are required to read the IRS Form 1040 and associated documents, or to pay someone else to read it for them.

[188]. While the proposed United States Constitution was debated, the government of Pennsylvania attempted to collect the public arms for cleaning and maintenance. A very large number of Pennsylvanians, however, refused to surrender their public arms even temporarily-fearing that the new federal government might be oppressive and that the Pennsylvania government might be attempting to prevent resistance to that government. See THE ORIGIN OF THE SECOND AMENDMENT, supra note 13, at 176, 191, 194, 200-01, 221, 226, 251, 286, 298, 334, 340 (reprinting letters and newspaper articles relating to the controversy from December 1787 to April 1788). For another discussion of public arms belonging to the government, see Minutes of the Executive Council of Georgia (May 28, 1784), reprinted in 2 THE REVOLUTIONARY RECORDS OF THE STATE OF GEORGIA 655 (Allen D. Candler ed., 1908) (ordering a private contractor to be paid for cleaning firearms, because, "the public arms, belonging to this State are much neglected, and, at present, in very bad order and condition").

[189]. See DEMOCRATIC PRESS (Phila.), Mar. 8, 1823, at 2.

[190]. Id.

[191]. "A Pennsylvanian" (Tench Coxe), Remarks on the First Part of the Amendments to the Federal Constitution, FED. GAZETTE (Phila.), June 18, 1789, reprinted in THE ORIGIN OF THE SECOND AMENDMENT, supra note 13, at 670-72.

[192]. See HICKS, supra note 185, at 27-29.

[193]. Letter from Tench Coxe to William Eustis (Nov. 28, 1809), reprinted in HICKS, supra note 185, at 27.

[194]. Id.

[195]. Letter from Tench Coxe to William Eustis (Mar. 3, 1810), reprinted in HICKS, supra note 185, at 28.

[196]. Letter from Tench Coxe to William Eustis (Nov. 10, 1810), reprinted in HICKS, supra note 185, at 29. But see John Adams, Speech to Both Houses of Congress (Nov. 22, 1800), in 9 THE WORKS OF JOHN ADAMS, SECOND PRESIDENT OF THE UNITED STATES 146 (Boston, Little, Brown & Co., Charles Francis Adams ed., 1854) (supporting the domestic manufacture of arms); COXE, supra note 116, at 120 (claiming that the American arms industry was healthy during the Washington administration).

[197]. Tench Coxe, PURVEYOR'S OFFICE CIRCULAR, Dec. 9, 1808, quoted in AURORA (Phila.), Jan. 14, 1811, at 2.

[198]. See HICKS, supra note 185, at 17-39, 49-57, 88-106, 142.

[199]. See COOKE, supra note 4, at 480. Coxe's hard work on arms procurement did not lead to any personal financial gain on his part as an arms merchant. He was buying for the federal government, not selling to it and, thus, could not profit from the increased demand resulting from his militia program. If Coxe had remained at his trading company while someone else carried out the arms acquisitions, Coxe doubtless would have enjoyed some increased business, although arms were not a particularly large share of his total revenues.

[200]. See id.

[201]. See id. at 473. Duane and Coxe, having once been allies, had become bitter enemies as a result of a factional dispute in the Pennsylvania Republican party in 1804. See id. at 346-47. Duane's disagreements with Coxe were based on personalities, not policy. Like Coxe, Duane was a strong advocate of a popular militia, and a fierce opponent of permanent federal military establishments. See WILLIAM DUANE, EXPERIENCE: THE TEST OF GOVERNMENT 55 (Phila., William Duane 1807) (proposing amendments to the Pennsylvania Constitution to ensure that militia officers would be chosen by militiamen); WILIAM DUANE, POLITICS FOR AMERICAN FARMERS 8-10 (Phila., R.C. Weightman 1807) (condemning a large navy, and praising Coxe's essay on the subject).

[202]. AURORA (Phila.), Jan. 14, 1811, at 2.

[203]. See id.

[204]. Id.

[205]. See AURORA (Phila.), Jan. 16, 1811, at 2.

[206]. See id.

[207]. AURORA (Phila.), Jan. 18, 1811, at 2.

[208]. The fourth and final number is in AURORA (Phila.), Jan. 19, 1811, at 2. While some of his charges appeared to have been based on rumor, Duane's expertise on the subject of firearms is clear. See WILLIAM DUANE, A MILITARY DICTIONARY (Phila., William Duane 1810); WILLIAM DUANE, THE AMERICAN MILITARY LIBRARY (Phila., William Duane 1809).

[209]. Tench Coxe, To the Public, DEMOCRATIC PRESS (Phila.), Jan. 19, 1811, at 2.

[210]. See id.

[211]. Id.

[212]. Id.

[213]. Tench Coxe, To the Public, DEMOCRATIC PRESS (Phila.), Jan. 21, 1811, at 2.

[214]. See id.

[215]. Id.

[216]. See Tench Coxe, To the Public, DEMOCRATIC PRESS (Phila.), Jan. 31, 1811.

[217]. Id.

The want of a sufficient number of pattern pistols or indeed of one to guide each maker, and the want of even one pattern rifle, for the office, has produced much real difficulty .... The entire want of practice in military pistol making, ... the general habits of using German and other imported locks for rifles and pistols, prevailing among the armourers, and the great difficulty, which the late Secretary found ... to refuse permission to use such locks as the two German locks and the pistol locks of Lancaster, which the purveyor submitted to him, will be remembered and considered.

Tench Coxe, To the Public, DEMOCRATIC PRESS (Phila.), Feb. 2, 1811, at 2.

[218]. See id.

[219]. See id.

[220]. See id. He received: (1) "200 pistol barrels" by Joseph Henry; (2) "The pair of pistols from Mr. Shuler, near Quaker Town with German locks, said to be improved here"; (3) "Military rifles, received from Lancaster, Pennsylvania ... by Henry DeHuff and Co. sometimes called Peter Gonter and Co. since the death of Mr. DeHuff; and by Abraham Henry, John Guest and Peter Brong and company"; and (4) the Indian rifles of J. Guest and Dickert ...." In addition, he noted: "The Proofs of musket barrels, and inspection of muskets, under the contracts of the Henry's, J. Miles, Nippes, Steinman and Winner, &c. in Pennsylvania and New Jersey will require early and effectual attention ..."; "The arms of Ginok (Hanoverian) require an early and complete cleaning ..."; and "Rifles and pistols made by A. Henry, J. Guest and P. Brong for army use, and of rifles made by J. Guest, for Indian use." See id.

[221]. See NORM FLAYDERMAN, GUIDE TO ANTIQUE AMERICAN FIREARMS AND THEIR VALUES (2d ed. 1980). Joseph Henry Contract Type Flintlock Pistols were made in Philadelphia from 1807-1808 as contract pistols and for private sale. See id. at 298-99. The John Shuler Contract Flintlock Pistol was made in Liverpool, Pennsylvania during the same period. See id. at 301. Henry DeHuff, Abraham Henry, Peter Brong, and Jacob Dickert, all of Lancaster, sold muskets to the Commonwealth of Pennsylvania under a 1797 legislative act. See id. at 423-24. John Miles of Bordertown, N.J., and James Winner, Abraham Nippes, and John Steinman of Philadelphia produced the Model 1808 musket. See id. at 429. Miles also made various pistols in 58-64 caliber range in Philadelphia. See id. at 300. At times, John Guest of Lancaster made pistols using Sweitzer locks. See id. at 297, 301. For further information on DeHuff, A. Henry, Shuler, and J. Henry, see SAMUEL E. DYKE, THOUGHTS ON TH AMERICAN FLINTLOCK PISTOL 8, 20, 24 (1974). Most rifles and pistols were manufactured in Eastern Pennsylvania due to the settlement of gunsmiths from Central and Southern Europe there, and the concentration of mines and furnaces in the area. See id. at 7.

[222]. See DEMOCRATIC PRESS (Phila.), Feb. 2, 1811, at 2.

It will be admitted by those who are acquainted with arms, that the manufacture of rifles and pistols, is little known except in the public armories, and excepting, as to rifles, in parts of one or two states.- Workman's skills and inspectoral judgment in these branches are rare. Perhaps we have not even settled good standards. If imperfections exist in the rifles and pistols, I am now well satisfied that some pronounce upon them, who have never inspected a score ....
Sixteen hundred rifles and eleven hundred pistols, made before we had lock forgers and inspectors, though at low prices for the country and under "strict and rigorous" contracts, seem to be the sum of that matter.
... From some lessons of late experience and observation, I am inclined to believe, that there are few countries, if any, which have reached the principles of the right construction of a musket, a pistol and a rifle.

Id.

[223]. See AURORA (Phila.), Dec. 21, 1811, at 2.

[224]. A "touch hole ... in early guns, before invention of the various lock or firing systems, [was] a hole or vent at the rear of the firearm which connected from the outside of the barrel to the chamber of the gun containing the powder charge." R.A. STEINDLER, THE FIREARMS DICTIONARY 257 (1970).

[225]. AURORA (Phila.), Dec. 21, 1811, at 2. Duane also made charges about supposedly inadequate uniforms purchased, and the rejection of a quantity of swords manufactured by a Richmond workman named Winner. See id. In the December 23, 1811 issue of the Aurora, Duane claimed that the purveyor discouraged American arms manufacture, resulting in the best workmen removing themselves to South America. See AURORA (Phila.), Dec. 23, 1811, at 2. The same article reiterates the allegation of "the admission of rifles without grooves or touchholes" and repeats a rumor "that when a demand was made for pistols, when an apprehension was entertained of a conflict in Florida, that these very pistols were ... totally unfit." Id.

[226]. See Tench Coxe, To the Public, Jan. 4, 1812, in PAPERS OF TENCH COXE, supra note 7, Reel 32, at 246-47.

[227]. See id. As to the swords, the purveyor "justly doubts the fitness of American steel," but in any case the swords were rejected by the inspector. Id. Certain German steel swords were also rejected. As to the German locks on some rifles, the secretary of war in Washington specifically approved them. Coxe reiterated that he was "a merchant and not a manufacturer" and, therefore, dependent on recommendations and directives by government officials and firearms specialists. Id. He added:

Much difficulty occurs in procuring standard patterns, and inspectors. The vastly greater failure of the state of Virginia in manufacturing arms, proves this.... I can safely appeal to the Secretary of War, in regard to my giving material aid to him in the improvement of pistols, swords and other matters ....

Id.

[228]. See AURORA (Phila.), Jan. 14, 17, 18, 1812, at 1. Duane concentrated on buttons received by the purveyor which supposedly were unfit. See id.

[229]. See Tench Coxe, To the Public, DEMOCRATIC PRESS (Phila.), Jan. 18, 1812, at 2. Coxe once again appealed "[t]o the [p]ublic," reiterating that the arms mentioned by Duane had passed inspection by two government officers. See id. He added that Duane overlooked the fact that Coxe was acting at the direction of the secretary of war: "I have procured the Calibre of the Harper's Ferry pattern pistol to be rejected by the present Secretary of War, on explicit military reasons and one of about twice the size adopted." Id.

[230]. See COOKE, supra note 4, at 470-75.

[231]. Tench Coxe, Broadside, Jan. 27, 1812, in PAPERS OF TENCH COXE, supra note 7, Reel 32, at 248.

[232]. See COOKE, supra note 4, at 475-79.

[233]. See id. at 486.

[234]. See id. at 487.

[235]. See id. at 497-98.

[236]. See TENCH COXE, Digest of Manufactures, reprinted in 2 AMERICAN STATE PAPERS (FINANCE) 666, 675-76 (Wash., Gales & Seaton 1832).

[237]. See id. at 675.

[238]. See id.

[239]. See id.

[240]. Id. at 676.

[241]. See id.

[242]. See id. at 687.

[243]. Id.

[244]. See supra notes 68-72 and accompanying text. Whether cannon or other light artillery are within the scope of the "arms" whose private possession the Second Amendment protects is beyond the scope of this article. The published scholarship that examines the issue concludes that the Amendment, while protecting all (or almost all) types of firearms, does not protect artillery. See Halbrook, What the Framers Intended, supra note 9; Kates, supra note 9, at 258-61; Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 L. & CONTEMP. PROBS. 148 (1986); Nelson Lund, The Past and Future of the Individual's Right to Arms, 31 GA. L. REV. 1, 41-46 (1996). Cannon were not regulated until 1968, and individuals now may possess them legally if registered with the federal government. See Gun Control Act of 1968, P.L. 90- 618, Title II, 82 Stat. 1213, 1227 (1968).

[245]. COXE, supra note 236, at 687.

[246]. Of course, some citizens might not have paid attention to the quality of their firearm, and others might not have known enough to discern poor workmanship. But on the whole, it is reasonable to expect that, at the least, a large number of purchasers would pay careful attention when buying a product on which their lives would depend. Today, there are many people who buy firearms with little attention to quality, and many others who purchase with great attention to detail.

[247]. Madison and Coxe corresponded about the American economy and politics; Madison also wrote to President Monroe urging an appointment for Coxe's son. See Letter from James Madison to Tench Coxe (Feb. 12, 1819), reprinted in 3 LETTERS AND OTHER WRITINGS OF JAMES MADISON, 1816-1828, at 116 (Phila., R. Worthington 1865) [hereinafter WRITINGS OF MADISON]; Letter from James Madison to Tench Coxe (Mar. 20, 1820), reprinted in WRITINGS OF MADISON, supra, at 170; Letter from James Madison to Tench Coxe (Nov. 4, 1820), reprinted in WRITINGS OF MADISON, supra, at 184; Letter from James Madison to Tench Coxe (Feb. 21, 1823), reprinted in WRITINGS OF MADISON, supra, at 301 ("I have forwarded the letters, with the printed papers, to Mr. Jefferson. I know well the respect which he, as well as myself, attaches to your communications."); Letter from James Madison to Tench Coxe (Mar. 1, 1823), reprinted in WRITINGS OF MADISON, supra, at 304.

Mr. Jefferson has just returned your two letters and papers. Supposing that I had yet to acknowledge them, he annexes a line requesting me to do it for him also; observing that it would hurt him much to leave unnoticed an old friend, and that the difficulty of using his pen with his crippled hand had compelled him to abandon writing but from the most urgent necessities.

Id.; Letter from James Madison to Tench Coxe (Oct. 12, 1823), reprinted in WRITINGS OF MADISON, supra, at 337; Letter of James Madison to Tench Coxe (Nov. 3, 1823), reprinted in WRITINGS OF MADISON, supra, at 341.

[248]. COOKE, supra note 4, at 521 (quoting Letter from Thomas Jefferson to Tench Coxe (Nov. 11, 1820)). Jefferson apparently retained so much interest in what Coxe had to say that Jefferson complained about Coxe's handwriting which, by 1823, had deteriorated so badly that Jefferson found reading it to be like "decomposing and recomposing ... hieroglyphics." JOHN MORTON BLUM, THE REPUBLICAN ROOSEVELT 142 (1952).

[249]. See COOKE, supra note 43, at 488-508.

[250]. See infra notes 266-72.

[251]. See infra notes 273-81, 284-97.

[252]. A "helot" was "[a] member of a class of serfs in ancient Sparta, intermediate in status between slaves and citizens." 1 THE NEW SHORTER OXFORD ENGLISH DICTIONARY 1216 (3d ed. 1993).

[253]. "A Democratic Federalist" (Tench Coxe), Considerations Respecting the Helots of the United States, African and Indian, DEMOCRATIC PRESS (Phila.), Nov. 25, 1820, at 2.

[254]. Id.

[255]. See supra notes 103-04 and accompanying text.

[256]. See Letters from Tench Coxe, in HICKS, supra note 192, at 28, 31 (1940) (discussing the common bore and "public arms"). Firearms at that time were manufactured with many bore sizes and, consequently, bullets often were not interchangeable, a situation Coxe had sought to alleviate as purveyor of public supplies in respect to the public arms he obtained. See id.

[257]. See Clayton E. Cramer, The Racist Roots of Gun Control, 4 KAN J.L. & PUB. POL'Y 17 (1995).

[258]. DEMOCRATIC PRESS (Phila.), Dec. 25, 1820, at 2.

[259]. Scott v. Sanford, 60 U.S. (19 How.) 393 (1856), overruled by U.S. Const. amend. XIV.

[260]. Id. at 417.

[261]. See COOKE, supra note 4, at 516-17.

[262]. See LEE KENNETT & JAMES LA VERNE ANDERSON, THE GUN IN AMERICA: THE ORIGINS OF A NATIONAL DILEMMA 11-16 (1973) (summarizing legislation in France from 1500-1789 that disarmed commoners).

[263]. THOMAS PAINE, THE RIGHTS OF MAN (J.M. Dent & Sons, Ltd. 1958) (1791).

[264]. Id. at 27-28.

[265]. Id. at 52.

[266]. "Publicola" (John Quincy Adams), Letters of Publicola II, reprinted in 1 WRITINGS OF JOHN QUINCY ADAMS 70 (W.C. Ford ed., 1913).

[267]. See id. Publicola's main purpose was to support President Washington's policy of neutrality in the war between England and France, as opposed to the followers of Jefferson, who wanted the United States to side with France.

[268]. Id. at 99-100, 109.

[269]. JOHN ADAMS, A DEFENCE OF THE CONSTITUTIONS OF GOVERNMENT OF THE UNITED STATES OF AMERICA (Boston, Freeman 1983) (1787).

[270]. JOHN ADAMS, DISCOURSES ON DAVILA: A SERIES OF PAPERS, ON POLITICAL HISTORY (Boston, Russell & Cutler 1805).

[271]. See id.

[272]. See John Quincy Adams, To the Freeholders of Washington, Wythe, Grayson, Russell, Tuzewell, Lee and Scott Counties, Virginia, RICHMOND ENQUIRER, Jan. 4, 1823, reprinted in 7 WRITINGS OF JOHN QUINCY ADAMS 337-38 (W.C. Ford ed., 1917).

[273]. DEMOCRATIC PRESS (Phila.), Jan. 16, 1823, at 2.

[274]. See id.

[275]. Id.

[276]. Id.

[277]. Id.

[278]. Id.

[279]. Id.

[280]. DEMOCRATIC PRESS (Phila.), Jan. 23, 1823, at 2.

[281]. Id.

[282]. DEMOCRATIC PRESS (Phila.), Jan. 28, 1823, at 2.

[283]. Id.

[284]. See "Sherman" (Tench Coxe), Manuscript for "To the People of the United States," in PAPERS OF TENCH COXE, supra note 7, Reel 113, at 713. The article was No. IX of a series with this title apparently published in the Democratic Press or in the Philadelphia Centinel and Mercantile Advertiser in 1823 or, possibly, 1824. The authors could not locate the issue in which the article appeared. (The pen-name "Sherman" appears in the Democratic Press, Dec. 24, 1823.)

[285]. See id.

[286]. Id. at 715. Coxe was not entirely accurate here. The 1789 Declaration of the Rights of Man and of the Citizen said nothing about hunting or the right to arms. See Declaration of the Rights of Man and of the Citizen (1789), reprinted in THE GREAT DOCUMENTS OF WESTERN CIVILIZATION 192 (Milton Viorst ed., 1965). The 1789 Decree to Abolish the Feudal System said nothing about the right to arms but did establish comprehensively a right to hunt:

III. The exclusive right to hunt and to maintain uninclosed warrens is likewise abolished, and every landowner shall have the right to kill, or to have destroyed on his own land, all kinds of game, observing, however, such police regulations as may be established with a view to the safety of the public.
All hunting capitaineries [preserves], including the royal forests, and all hunting rights under whatever denomination, are likewise abolished. Provision shall be made, however, in a manner compatible with the regard due to property and liberty, for maintaining the personal pleasures of the king.
The president of the Assembly shall be commissioned to ask of the king the recall of those sent to the galleys or exiled, simply for violations of hunting regulations, as well as for the release of those at present imprisoned for offenses of this kind, and the dismissal of such cases as are now pending.

Decree to Abolish the Feudal System (1789), reprinted in THE GREAT DOCUMENTS OF WESTERN CIVILIZATION, supra, at 186-87.

[287]. PAPERS OF TENCH COXE, supra note 7, Reel 113, at 715.

[288]. See William Rawle, A View of the Constitution of the United States of America 125-26 (Da Capo Press 1970) (2d ed. 1829); 3 Joseph Story, Commentaries on the Constitution of the United States 747 (Da Capo Press 1970) (1833); 3 St. George Tucker, Blackstone's Commentaries with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and the Commonwealth of Virginia 414 n.3 (The Lawbook Exchange, Ltd. 1996) (1803).

[289]. HALBROOK, supra note 97, at 51-53; JOYCE LEE MALCOLM, THE RIGHT TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT 126-30 (1994).

[290]. See TUCKER, supra note 288, at 414 n.3.

[291]. PAPERS OF TENCH COXE, supra note 7, Reel 113, at 716.

[292]. Id.

[293]. Id. at 717. At the time Coxe wrote, Spain and Portugal were enjoying brief periods of constitutional liberalism, and the republican wars of independence in Latin American were all but victorious.

[294]. Id.

[295]. Id. at 718-19.

[296]. Letter from Tench Coxe to Thomas Jefferson and James Madison (Jan. 31, 1823), reprinted in MADISON PAPERS, supra note 14, at 5-6. In a second letter to Jefferson and Madison written a day later, Coxe warned that "the times are most dangerous to the cause of liberty, religious and civil, in Europe, and since a total failure (by power, numbers, arms[,] and combination) there, will endanger us and our system, in the two Americas." Letter from Tench Coxe to Thomas Jefferson and James Madison (Feb. 1, 1823), reprinted in MADISON PAPERS, supra note 14, at 2. Coxe suggested that the circulation of the newspapers which published the above articles "in your parts of the country" would be useful in the coming presidential election. Id. at 3.

[297]. Letter from James Madison to Tench Coxe (Mar. 1, 1823) (available in JAMES MADISON PAPERS (on file in the Library of Congress).

[298]. Letter from Tench Coxe to James Madison (Oct. 3, 1823) (available in JAMES MADISON PAPERS, supra note 297); Letter from James Madison to Tench Coxe (Oct. 12, Nov. 3, 1823) (available in JAMES MADISON PAPERS, supra note 297).

[299]. See COOKE, supra note 4, at 523.

[300]. Adams and Jefferson both died on July 4, 1826, exactly fifty years after the Declaration of Independence.

[301]. See PAPERS OF TENCH COXE, supra note 7, Reel 113, at 716.

[302]. See Ehrlman & Henigan, supra note 10, at 57 ("[T]here is no substantial historical evidence for the claim that the second amendment guarantees an individual right to have arms for any purpose other than participation in a state-regulated militia.").

[303]. Cf. Patsone v. Pennsylvania, 232 U.S. 138, 143 (1914) (upholding a law depriving aliens of guns for hunting because the law did not affect arms for self-defense).

[304]. "Sidney" (Tench Coxe), To the Friends of the Principles of the Constitution, DEMOCRATIC PRESS (Phila.), Jan. 23, 1823, at 2.

[305]. See STORY, supra note 288, at 747.

[306]. See RAWLE, supra note 288, at 125-26.

[307]. See TUCKER, supra note 288, at 414 n.3.

[308]. See supra note 146 and accompanying text. In 1823, the same year Coxe attacked the Adamses for the last time, the senior Adams reaffirmed his commitment to a universal militia and his opposition to a select militia and standing army. See WILLIAM H. SUMNER, AN INQUIRY INTO THE IMPORTANCE OF THE MILITIA TO A FREE COMMONWEALTH; IN A LETTER FROM WILLIAM H. SUMNER TO JOHN ADAMS WITH HIS ANSWER 69-70 (Boston, Cummings & Hilliard 1823).

[309]. Coxe was, of course, not the equal of the men for whom he worked- Hamilton, Jefferson, and Madison; his conduct at the start of the Revolution, his personality flaws and his partisanship ensured, despite his writing ability and his energy, that he would be in the second rank of the Founders, not the first.

[310]. See PAPERS OF TENCH COXE, supra note 7, Reel 113, at 716.