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"No Freeman Shall Ever Be Debarred the Use of Arms"


A brief explanation of why Jefferson's draft of the Virginia Constitution, including the above quote, was not adopted.

The following commentary is excerpted from:

The Second Amendment and the Historiography of the Bill of Rights, by David T. Hardy,4 J. of Law & Pol. 1-62 (1987).

Virginia's Constitution and Bill of Rights were the first adopted after the Declaration of Independence. While records of the actual deliberations are limited, it is known that Thomas Jefferson drafted a document worthy of the Enlightenment. Jefferson's draft would have extended the franchise to any taxpayer, divided state lands among the landless citizens, ended importation of slaves, and banned the establishment of religion. His proposal did not mention the militia or its role in a republic, but did include a clearly individual right to arms: "No freeman shall ever be debarred the use of arms."

Virginia's legislature chose instead a constitution and bill of rights drafted by committee, and taken predominantly from the proposals of the more conservative George Mason. The prevailing version omitted any mention of individual arms and substituted a recognition that: "A well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State."

It is unlikely that the choice was dictated in this case by a conflict of values. Jefferson, who had served on the committee to organize the Virginia militia, was an unlikely opponent of the militia concept. Mason, who was a firearms collector and George Washington's hunting partner, was an improbable supporter of individual disarmament. The difference is more one of emphasis. The Constitution as adopted looks predominantly to maintenance of the status quo. This was predictable since the members of the committee charged with the initial drafting were predominantly large land-owners. Mason's original draft contained a substantial property requirement for legislators--only citizens owning 1,000 pounds worth of real estate could run for the lower house, while only those with twice that freehold could run for the upper.

In more general terms, the primary concern of the 1776 constitution is (as it was with Harrington and his followers) the establishment of a stable republic. Indeed, the original draft did not recognize a "right" to freedom of religion, but rather a "toleration of the exercise of religion," along the lines of the British Toleration Act, which for practical grounds exempted certain faiths from the ban on non-establishment churches. Only the intervention of the novice legislator James Madison enabled an American president to later boast: "It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights." The Virginia Declaration thus looks backward to the classical republic and concern for the state; Jefferson's unsuccessful draft, in contrast, looked forward to the form of democracy which would take his name. The gap between the Harringtonian republic and Jeffersonian democracy was clearly demonstrated in Jefferson's explanation of his draft:

I was extending the right of suffrage (or in other words the rights of a citizen) to all who had a permanent intention of living in the country. Take what circumstance you please as evidence of this, either the having resided a certain time, or having a family, or having property, any or all of them. Whoever intends to live in a country must wish that country well, and has a natural right of assisting in the preservation of it.
The contrast between Mason's and Jefferson's proposals highlights a correlation which will be found in later efforts by other states. Those constitutions which maintained the Classical Republican link between land ownership and electoral participation also stressed its ideal of militia institutions. Those constitutions which accepted the Radical foundation of near-universal manhood suffrage largely ignored the militia ideal but stressed individual rights to arms.

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