Free Religious Exercise in Virginia

The Virginia Constitutional Convention adopted George Mason's version of the Declaration of Rights on June 12, 1776. The last section deals with religious freedom:

That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity toward each other.

This list of Rights, protecting the people from the government and noting in section 2 that "all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them", influenced Jefferson's drafting of the Declaration of Independence, other states' constitutions, and the Bill of Rights to the U.S. Constitution.

This site provides some background:

After having decided to break with Great Britain, members of Virginia's fifth Revolutionary Convention voted unanimously on May 15, 1775, to prepare a new plan of government or constitution for Virginia, as well as a statement of rights. George Mason arrived late at the convention and became the thirty-second of thirty-six members of the drafting committee. Mason soon took the reins and drove the discussion. Edmund Pendleton noted, “The Political Cooks are busy preparing the dish, and as Colonel Mason seems to have the Ascendancy in the great work, I have sanguine hopes it will be framed so as to Answer it's [sic] end, Prosperity to the Community and Security to Individuals.”

Mason's initial draft consisted of ten paragraphs that outlined such rights as the ability to confront one's accusers in court and to present evidence in court, protection from self-incrimination, the right to a speedy trial, the right to a trial by jury, and the extension of religious tolerance. All of the aforementioned rights were eventually adopted as a part of the Bill of Rights in the U.S. Constitution in 1791. Consulting with Mason, Thomas Ludwell Lee suggested two additional paragraphs, providing protections for the press and striking down ex post facto laws. Later, the drafting committee added other rights to the list, such as banning excessive bail and cruel and unusual punishment.

From English Penal Laws to the U.S. Second Amendment

One of my friends sent me a link to this article, assuming that I already knew about its premise: that the Second Amendment of the Bill of Rights was James Madison's response to Penal Laws that forbade Catholics in England and Ireland from owning weapons. Makes sense once I read it; like no religious tests for federal public office in Article VI, paragraph 3 was a response to English Test Acts passed during Charles II's reign.

To quote this article from The Washington Post by David Kopel:

Although Catholics were a small minority in England, there were concerns that in case of foreign invasion by a Catholic nation, they would ally with their co-religionists. Thus, in 1613 King James I had ordered the disarmament of all Catholics. Similarly, Michael Dalton’s widely read 1622 manual for Justices of the Peace, “The Countrey Justice,” explained that Justices could seize the arms of convicted “popish Recusants.” In English law, a “recusant” was a Catholic who refused to attend the services of the Church of England. Because the arms guarantee in the English Declaration of Rights did not apply to Catholics, Parliament was free in 1695 to pass “An Act for the better securing the government, by disarming papists.” The statute was aimed especially at Catholics in Ireland, who had a long history of fighting England’s efforts to rule them without their consent. Although Catholics had no right to arms, they could possess or carry a firearm if they were granted a license.

In the American colonies, however, there do not appear to have been arms restrictions aimed at Catholics, except for one episode in Maryland in the early 18th century, during Queen Anne’s War. James Madison aimed to make sure that religious restrictions on the right to arms could never be allowed in the United States. Madison’s notes for his speech in Congress introducing the Bill of Rights explained that the proposals were to deal with the “omission of guards in favr. of rights & libertys.” His amendments “relate 1st. to private rights.” A Bill of Rights was “useful–not essential.” There was a “fallacy on both sides–especy as to English Decln. of Rts.” First, the Declaration was a “mere act of parlt.” Second, the English Declaration was too narrow; it omitted certain rights and protected others too narrowly. In particular, there was “no freedom of press–Conscience.” There was no prohibition on “Gl. Warrants” and no protection for “Habs. corpus.” Nor was there a guarantee of “jury in Civil Causes” or a ban on “criml. attainders.” Lastly, the Declaration protected only “arms to Protestts.” Thus, the Second Amendment contains none of the limitations or exceptions of its English ancestor.

The author of the article is David Kopel, Research Director, Independence Institute, Denver; Associate Policy Analyst, Cato Institute, D.C; and Adjunct professor, Denver University, Sturm College of Law. It was based upon an article in the Georgetown Journal of Law & Public Policy, “The First Century of Right to Arms Litigation.”