Posted by Eugene Volokh:
Two More Early References to the Right To Bear Arms,
http://volokh.com/archives/archive_2008_11_16-2008_11_22.shtml#1227034565
in 1816 arguments to a jury. The first is by defense lawyer [1]Joseph
Reed Ingersoll, who would eventually become a prominent Congressman:
I think it is apparent ... [t]hat after the attack, and threats,
and the avowal of an intention of the part of captain Carson to
take away his life, he had a right to bear arms on the plainest
principles of self-defence....
Having the right of access to the house, he was justifiable in
protecting himself by the only means which reduce the powerful to a
level with the weak. The constitutions, both of the Federal
government and of the commonwealth of Pennsylvania, secure to every
citizen, the right to bear arms, and the only question that
remains, is whether the exercise of the right be compatible with
disretion.
The second is by another defense lawyer, William Rawle, a prominent
early American lawyer who would nine years later write a treatise that
likewise supported the individual rights view of the right to bear
arms and of the Second Amendment:
There is only one circumstance remaining worthy of notice; that of
arming himself. The constitution of this state has expressly
secured the right to carry arms. In Art. IX, Sect. XXI, "the right
of the citizens to bear arms, in defence of themselves and the
state, shall not be questioned."
The right, in defence of the state is, where foreign invasion
occasions it to be in danger; that of defence of themselves
continues through their lives, and, therefore, there is not any
thing in opposition to Richard Smith's bearing arms, not against
the officers of the law, but against the lawless attack of an
individual he had to fear. If, in a conversation with another,
attacked by him, he had caught up and fired that pistol, in fear of
his person suffering great bodily harm, the law would have
considered it as excusable homicide. Does his carrying that pistol,
after Carson's previous attempt on him, for self defence, make him
culpable? No -- the constitution allows it, especially when the
assistance of the magistrates could not be obtained; it follows,
that the use of this pistol was not unlawful when accompanied with
these circumstances. Suppose he had been taken up for carrying a
pistol in his bosom, and upon complaint being made to some of the
learned magistrates, he had defended himself, by saying, he carried
it in fear of his life; or were to say even, I do not carry it --
it is in my chamber -- the judge would answer, pursue, uniformly,
the same conduct; you are perfectly justifiable, and have a right
to be armed in your own defence.
Trials of Richard Smith Together with the Arguments of Counsel, the
Charges and Sentence of the President 157, 205 (1816).
These are small pieces of evidence, but I ran across them and thought
I'd note them, especially since they are from only 25 years after the
Bill of Rights was ratified, and since the second is one of the few
sources that discusses the "in defence of themselves and the state"
locution that's common in state constitutions. And the quotes help
support, I think, the view that the Second Amendment was widely
understood as securing an individual right to bear arms, including in
self-defense, to the point that lawyers could confidently and casually
assert this even in cases where they didn't have that much to gain
from it: If Ingersoll wasn't sure that his audience would agree that
the Second Amendment secured such a right, he could easily have just
relied on the state constitutional right, which was the one most
directly relevant in this state prosecution.
An interesting tidbit: The prosecutors were Jared Ingersoll -- defense
lawyer Joseph Ingersoll's father -- and one Edward Ingersoll, who I
take it was also related, though I'm not sure exactly how.
References
1. http://bioguide.congress.gov/scripts/biodisplay.pl?index=I000019
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