Early Virginia Law - Banning Carry?


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Malum Prohibitum
August 13, 2006, 03:16 PM
In researching whether the defintion of the word "bear" included the meaning of "carry" in the 1700s, I ran across this interesting quote from the Emerson decision (Fifth Circuit Court of Appeals):

Also revealing is a bill drafted by Thomas Jefferson and proposed to the Virginia legislature by James Madison (the author of the Second Amendment) on October 31, 1785, that would impose penalties upon those who violated hunting laws if they "shall bear a gun out of his [the violator's] inclosed ground, unless whilst performing military duty."

2 The Papers of Thomas Jefferson 443-44 (J.P. Boyd, ed. 1950).


It struck my interest for a reason in addition to the obvious meaning of bear as "carry" - it would appear to have been a proposal to outlaw the carrying of a gun off one's own property.

As it was penned by Thomas Jefferson, and proposed to the Virginia legislature by Madison, this struck me as rather odd.

Does anybody have more of this proposed bill in context? Does the context reveal it to be something other than a ban on carrying guns outside of one's own property? (The reference to hunting laws hints that the context may hold the key).

Did it pass?

Were there similar laws in the 1700s?

While this proposal predates the Second Amendment, I find it strange indeed.

When Thomas Jefferson wrote to his 13 year old nephew, recommending that a gun be the constant companion of his daily walks, was he referring to only within the confines of his own land?

Are there any Clayton Cramer types out there who might enlighten us on this?

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MSGT9410
August 13, 2006, 03:31 PM
I would find it even more strange if it was propsed AFTER the 2nd Amendment. I think this probably went out the window, seeing that before the 2A, they didn't have to worry about foreign armies invading our land as much.

geekWithA.45
August 13, 2006, 03:32 PM
Can't comment on that particular item, but I'd point out that there's historically been a separate fork between gun control as a crime/slavery uprising inhibition tool, and gun control as a hunting regulation/anti-poaching tools, a split that carries on to this very day, even in Vermont, which bars loaded longarms in vehicles.

And yes, the Founders were well aware of the difference, pointing to the proliferation of regulations in England that they viewed as RKBA infringements, despite their were alleged "hunting regulation", positioning.

I'm also not sure that such a proposed regulation would have made sense, given that lots of hunting occurred on the vast swathes of land that weren't settled or private property.

Malum Prohibitum
August 13, 2006, 04:00 PM
There is a little more of it here:

http://randybarnett.com/pdf/righttobeararmconditional.pdf

on page 9, but not enough to make sense of it.

Malum Prohibitum
August 13, 2006, 04:02 PM
AAAH!

Got it.

http://www.constitution.org/2ll/schol/jfp6ch04.txt

This was a condition of probation for people convicted of illegally taking deer!

:)

Well, that explains it.

Malum Prohibitum
August 13, 2006, 04:03 PM
WAY different than our modern concept of probation. The proposed law added this

"The violator could bear a pistol, but not a shoulder arm except for militia duty."

I guess a pistol was not considered useful for hunting?

UPDATE - I find this last sentence, which contain Halbrook's words and not the proposed statute's, highly doubtful after reading the footnote, which simply notes from Noah Webster's definition from the early 1800s that the term "gun" included longarms and not pistols (and adding that bear meant carry). To the extent it is relevant, Webster was a prominent Federalist.

Malum Prohibitum
August 13, 2006, 04:12 PM
The violator would have had to go back to court for "every such bearing of a gun."

MrZ
August 13, 2006, 04:19 PM
"would impose penalties upon those who violated hunting laws if they "shall bear a gun out of his [the violator's] inclosed ground, unless whilst performing military duty."

Sounds like they are proposing that violators of hunting laws, aka poachers, will not be allowed to carry arms off of their own property. Makes sense to me. By enacting this as law it would allow "convicted" poachers to hunt their own lands still, but would not allow them off of their own property to potentially poach other peoples game.

skidmark
August 13, 2006, 05:10 PM
For a decent history of gun laws in virginia, including case law, see:

http://www.virginia1774.org/

There is a very precise exposition of the 2nd Amendment anf the history of concealed carry that I recommend to all.

stay safe.

skidmark

Diomed
August 14, 2006, 03:18 AM
I guess a pistol was not considered useful for hunting?

At that time, not really. Unless it was rifled (i.e. expensive), it wasn't much good beyond a few paces.

UPDATE - I find this last sentence, which contain Halbrook's words and not the proposed statute's, highly doubtful after reading the footnote, which simply notes from Noah Webster's definition from the early 1800s that the term "gun" included longarms and not pistols (and adding that bear meant carry).

Interesting, since in my readings of the period "guns" usually meant artillery, while shoulder arms were specifically muskets or rifles. Of course, that's more military than civilian.

El Tejon
August 14, 2006, 08:58 AM
Had always been overlap between guns and small arms, going back to England's "Handgonnes.":)

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