The Bill of Rights secures to the people the use of arms in common defense; so that, if it be an alienable right, one use of arms is secured to the people against any law of the legislature. The other purposes for which they might have been used in a state of nature, being a natural right, and not surrendered by the constitution, the people still enjoy, and [may?] continue to do so till the legislature shall think fit to interdict. "Scribble Scrabble," Cumberland Gazette, January 26, 1787; "Scribble-Scrabble," ibid., December 8, 1786
That is Weapons related to militia service enjoyed greater protection and were not subject to the same level of regulation as personal arms. The right to keep arms for civilian purposes was not removed from the sphere of legislative power, it was subject to the full scope of the state's police powers.
The right to keep and carry firearms was one of the issues in Commonwealth v. Selfridge, the most important murder trial of the early republic. Selfridge's lawyer conceded that "every man has a right to possess military arms" and "to furnish his rooms with them." Yet the defense also recognized that the ownership and the use of non-military weapons were not constitutionally protected. Rather than assert a constitutional claim, the defense framed a common law argument on behalf of his client. Selfridge's attorney argued "there is no law written or unwritten, no part of the statute or common law of our country which denies to a man the right of possessing or wearing any kind of arms." Given this fact, it was indisputable that "in every free society a man is at liberty to do that which the law does not interdict, nor can the doing that which is not forbidden be imputed as a crime." Therefore, the acquittal in the Selfridge case made perfect legal sense since Selfridge had not broken any law.
Trial of Thomas O. Selfridge, attorney at law, before the Hon. Isaac Parker, Esquire, for killing Charles Austin, on the public exchange, in Boston, August 4, 1806 by Thomas O. Selfridge, Published by Russell and Cutler, Belcher and Armstrong, and Oliver and Munroe (Boston) 1807.
