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Miniseries, Part II – Disarmament of those Disaffected to the Cause of America

By on June 26, 2019 Categories: , , ,

[Ed. Note: As we discussed here, this post is part of a three-part series on gun laws in the Center’s Repository of Historical Gun Laws, written by Center research assistant Catie Carberry. This post, like the Repository, is exemplary and not exhaustive.]

Who was disarmed at the time of the founding?

As mentioned in the last post in this series, there are currently several laws in the Repository that prohibited or restricted the sale of guns to Native Americans and nonresidents around the time of the founding. Yet these laws did not disarm Native Americans or nonresidents, and in fact implicitly acknowledged that Native Americans had arms as the laws forbade colonists from repairing them.

More closely resembling actual disarmament, there are laws that authorize confiscation of the weapons on the person of Native Americans if they went armed into New Netherland or passed armed through the Colony of Rhode Island without a “ticket” for bearing arms. Yet these laws did not ban violators from repurchasing firearms or disallow them from keeping weapons at home or carrying them elsewhere.

Aside from those laws, two other laws in the Repository that disarmed people at the time of the founding came out of Pennsylvania, the first in 1776 and the second in 1779. The first law disarmed “nonassociators.” The second disarmed those who refused to take an oath of loyalty or allegiance to any state.

The second law spurred a research expedition of sorts over here at the Center, during which I found a handful of laws from other states that similarly disarmed military aged men who refused to take an oath of loyalty. These laws came in response to a recommendation by the Continental Congress at the dawn of the Revolutionary War, and they bear a striking resemblance to the 1689 English law which forbade Catholics from possessing arms (beyond those needed for protection of house and person) if they refused to tender a declaration of loyalty.

Pennsylvania created an oath requirement in 1777. By its terms it disarmed those who refused to take the oath of loyalty and barred them from holding any office in the state or serving on juries (among other civic roles). Yet while it disarmed those refusing or neglecting to take the oath, the statute did not state that such persons could not repurchase arms. The statute was amended in 1778, however, and the amended statute forbade those refusing to take the oath from “carry[ing] any arms about his person or keep[ing] any arms or ammunition in his house or elsewhere” on pain of forfeiture. Notably, Pennsylvania’s constitution at the time protected an individual arms right.

Massachusetts similarly passed a law in 1776 that required “every Male Person above sixteen Years of Age” to take an oath of loyalty, and disarmed those who refused of “all such arms. . . and warlike implements, as by the strictest search can be found in his possession or belonging to him.” Yet the law included at least one potentially important exception: Quakers’ religious preferences were accommodated, and they were exempted from the standard oath. As with Pennsylvania’s law in 1777, this law did not clearly state that those disarmed were precluded from purchasing new arms.

Massachusetts enacted another law after Shay’s Rebellion which allowed those who had taken up arms against the state to obtain a pardon. Such persons had to swear allegiance to the state and deliver their arms to a Justice of the Peace. For the span of three years they were also required to keep the peace, and, as with the 1777 Pennsylvania law, they were disqualified from serving as jurors or holding office in the state (among other restrictions).

As with the other person-based regulations, these laws also lead to more questions: Is there any significance to the fact that Massachusetts included a religious exemption? Are these laws a precursor to the felony gun laws? Or are they just the product of their time?