Skip to comments.The truth about 2nd Amendmt, Part 2: Mitilia history as founders knew it
Posted on 06/10/2002 8:14:11 AM PDT by Wolfstar
Wolfstar's Note: 226 years after the signing of our Declaration of Independence, few Americans are taught or bother to learn the meaning of our founding documents. But they were not intended for the people to read and say, "Oh, that's what those guys in Congress are doing." They were intended to persuade the people to agree, first to independence, then to form a union of 13 very different, newly independent, sovereign states and adopt a republican form of government. In order for us to protect conserve our heritage, we must first understand it. Constitutional scholarship is not just for elites. (See "The truth about the 2nd Amendment, Part 1, here.)
To continue with the most contentious of our rights, to KEEP and bear arms: The article posted below was written by one of world's the foremost historians specializing in an unusual field, 17th Century English constitutional history. Professor Joyce Lee Malcom holds a bachelor's degree from Barnard College, a doctoral degree from Brandeis University, and is a Fellow of the Royal Historical Society. She has recently completed a book on the origins of the 2nd Amendment. Professor Malcolm's work has been supported by the National Endowment for the Humanities, the American Bar Foundation, Harvard Law School, Robinson College of Cambridge University and the Huntington Library.
She has testified before the U.S. Senate Judiciary Committee, concluding:
"There is overwhelming evidence that the Second Amendment was intended to protect an individual right. It is time to concede that truth. The alternative, to willfully misread a constitutional guarantee one finds inconvenient, is an ominous precedent. It is a quicker means of change than amendment, but a tactic that endangers all our rights."
Although, even edited, this article is a bit long, it is worth reading because it describes the English history of militias and gun ownership within the 100 years immediately preceding our Revolutionay War. This history was as immediate and as familiar to the founders as the 20th Century is to us. It explains why our founders preferred a militia to a standing army, why they enshrined the people's right to KEEP and bear arms into our constitution, and why they wanted a "well-regulated" militia. This is the context of the 2nd Amendment as our founders understood it and as we should understand it today if we are to protect this very critical right.
In the following, blue bold is added for emphasis, ellipsis show editing for brevity, words in brackets  added for clarity, the following is otherwise verbatim. Click above link to read the entire article. Posted in honor of the true "greatest generation," those active in public life circa 1765-1800 who gave us our nation and our Constitution.
The Role of the Militia in the Development of the...Right to be Armed
When it comes to the origins of the 2nd Amendment, Americans seem to have reversed the old adage that...a wise child...knows its father. Our Constitution's founding fathers are far better known to us than [Britain]...This is doubly unfortunate: first, because the founders' notions of liberty, including the right to be armed, were profoundly shaped by the British model. And second, because the language in which they couched the 2nd Amendment has become obscure.
An examination of the English right to have arms, the attitudes it embodied, and the intent behind it, can provide some badly needed insight into the meaning of our 2nd Amendment. Clarifying the English legacy can help us clarify our own.
[The] aspect...most in need of clarification is its initial pronouncement: "A well-regulated Militia being necessary to the security of a free state..." While it must have seemed straightforward enough to its drafters, the shared understandings upon which it was based have vanished. [Over] two hundred years later, we're no longer sure why is it there or what it means...Since the preference for a militia, with all its strengths and failings, was part and parcel of our English heritage, that heritage can help us determine the purpose of that clause in the 2nd Amendment...
It is easy to forget that England had no standing army until late in the 17th century, and no police force until the [middle of the] 19th century. The militia was one of a variety of peace keeping chores foisted upon the average Englishman for which he was required to have weapons and to be skilled in their use. All Protestant men between the ages of 16 and 60 were liable for militia duty, but from the reign of Elizabeth I smaller numbers were selected for more serious training - the so-called trained bands...The militia was under the command of the [King] who appointed a lord lieutenant (usually a local nobleman) to oversee the militia of each county. The militia's task was defensive...a home guard to suppress riots and, if need be, repel invasion...
Men resented having to serve, and tried to avoid spending their leisure hours at mandatory target practice...Militia assessments were also resented. Everyone was assessed for a contribution of weapons in accordance with their income, but rates were often unfairly apportioned and cheating was common. Those assessed often supplied faulty weapons and lame horses, and those who served sometimes made off with militia equipment.
Nor was it any secret that the militia was a doubtful peacekeeper. Its members sometimes sympathized with rioting neighbors they were sent to subdue, and in wartime the entire force could be woefully amateurish [Ed. note: one reason for the "well-regulated" language in our Constitution].
BUT, and this is a large but, the militia was always regarded as preferable to a professional army. Theoretical tracts and popular opinion portrayed the citizen-soldier as fierce in the defense of home and country, but damned...professional [soldiers] as callous, expensive, and a threat to the liberties of the country...John Trenchard's best-selling pamphlet found, "A Standing Army...inconsistent with a Free Government." As early as Magna Carta, English kings were promising not to use professional soldiers.
The virtues of the militia may have been overblown, but subsequent events proved the validity of anti-army prejudice. During the 16th and 17th centuries professional armies took a heavy toll of both people and Parliaments. European Parliaments fell victim to ambitious kings aided by ever larger armies, while the enormous civilian casualties caused by armies during the Thirty Years' War were not to be equaled until our own century. Imperfect as the militia was, it was [considered] far better than the alternative.
The armies raised by the English Crown...were treated with grave suspicion, kept to minimal size and disbanded as soon as possible. England's Civil War in the 17th century [was] provoked by a fight for control of the militia [and] drove both king and Parliament to rely upon field armies. Once the war was over, the...victors [led by Cromwell] reduced the size of their army and reinstated the militia. Given the real danger of counter-revolution this militia [was] sworn to defend the new regime [and] found its chief task was the prevention of subversion. Militiamen were ordered to "disarm...all...persons that...shall declare themselves in...words or actions against this present Parliament..."
In 1660...the republic collapsed and monarchy was restored. Those who had supported the republic were now suspect in their turn. Again a militia, this time of loyal royalists, was crucial to the maintenance of order. Charles II had promised a general amnesty but his supporters feared "many evil and rebellious principles have been distilled into the minds of the people of this kingdom, which unless prevented, may break forth to the disturbance of the peace and quiet thereof."
...we learn that, "divers persons suspected to be fanaticks, sectaries or disturbers of the peace have been assaulted, arrested, detained or imprisoned, and divers arms have been seized and houses searched for arms" [by the royalist militia]. The Militia Act passed by a royalist Parliament in 1662 perpetuated the trend [to seize arms] started under [Cromwell], but granted the militia even broader powers to disarm Englishmen. Any two deputies could search for and seize the arms of anyone they regarded as "dangerous to the Peace of the Kingdom."
It is important to note [that both] the republican and Restoration militias were comprised...of men with politically correct views. They were...not [from the] general [public], but select, politically oriented militia. It didn't seem to occur to...Parliament...that the militia might be used against them. After all, their enemies and the king's enemies were identical, and many members of Parliament were militia officers themselves. But...the militia acts "provided a sound militia system which could be misused by the Crown." The militia's power to disarm suspicious persons was part of a broader campaign to restrict weapons. The import of firearms was banned, a license was required to transport guns, and royal proclamations forbid anyone who had fought for Parliament from carrying weapons. Gunsmiths were ordered to submit weekly lists of those who bought the weapons they made.
Lastly, in 1671, a Game Act was passed which, for the first time, made it illegal for anyone unqualified to hunt, [that is] anyone with less than L100 a year in income from land, to have a gun. Hunting had long been a privileged activity and previous game acts had banned devices designed exclusively for hunting. But guns had legitimate purposes and had only been confiscated if actually used in poaching. The 1671 act was to be enforced by the country gentry and their gamekeepers, not the king. This strange legislation...if strictly enforced, would have disarmed not only some 90% of the country population, but all professionals and merchants whose income was not from land...
As with the militia acts, Parliament had provided a tool that could be [mis]used by the Crown...[which] may have escaped the notice of Parliament, but was not lost on the Stuart kings. Starting in 1680, Charles II used the militia to disarm leading Whigs. His successor, James II, purged the militia itself, removing many lord lieutenants and hundreds of Protestant officers and justices-of-the-peace who were less than enthusiastic about his [Catholic] religion and policies, frequently replacing them with Catholics. Those...summarily sacked by the king often suffered the added indignity of being forcibly disarmed. James II even attempted to use the Game Act of 1671 to achieve a more general disarmament.
In December 1686, the lord lieutenants of six northern and western counties were informed "that a great many persons not qualified by law under pretence of shooting matches keep muskets and other guns in their houses." They were commanded "to cause strict search to be made for such muskets or guns, and to seize and safely keep them till further order." Even if James II had not begun to purge the lieutenants who received these orders, it is unlikely they and their men could have carried out such an ambitious and risky task. But the mere threat was enough. The "governing classes" had been made painfully aware that two acts of Parliament, the Militia Act and Game Act, had given the Crown the ability to disarm law-abiding subjects. [Ed. Note: this was a scant 90 years before our Declaration of Independence.]
Possession of firearms had been a duty and a privilege. Now it seemed to them an essential right. The chance to establish such a right came two years later...As thousands of his subjects flocked to join William [of Orange], a panic-stricken James II fled to France. What England calls its Glorious Revolution had begun. A Convention was elected to settle the throne and restore the ancient constitution. Its members were determined to protect their liberties from future royal encroachment. High on their agenda of outrages suffered, they placed the disarmament of law-abiding citizens...
[The Convention wrote] the Declaration of Rights...an early version read, "The Acts concerning the Militia are grievous to the Subject." By the final version...James II...was accused of having trespassed upon their liberties, "By causing several good Subjects, being Protestants, to be disarmed, at the same time when Papists were both armed and imployed, contrary to Law." This complaint was balanced in the list of proclaimed rights by the claim that, "The Subjects, which are Protestants, may have Arms for their Defence suitable to their Conditions and as allowed by Law..."
[During] the 18th century, the right of individual Englishmen to be armed began to be regarded as protecting not only the individual, but the constitution itself. The Whigs had pressed for this viewpoint during the debates on the [English] Bill of Rights, but it was not until 1765 that William Blackstone, in his Commentaries on the Laws of England, accepted this crucial function of the right to be armed [thereby] transforming it into orthodox opinion. Blackstone lists all the rights of Englishmen, then observes, "But in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary rights of the subject, which serve principally as outworks or barriers to protect and maintain inviolate the three great and primary rights of personal security, personal liberty, and private property."
To enable them to vindicate their rights, if these were violated, Blackstone explains that the subjects of England were entitled...first...to the regular administration and free course of justice in the courts...next to the right of petitioning the king and Parliament for redress of grievances, and lastly to the right of having and using arms for self-preservation and defence. We should note that neither the Whigs nor Blackstone mentioned the militia in this regard. [Ed. Note: Blackstone was writing a mere five years before the Boston Massacre, which put the 13 colonies on the road to Independence.]
To sum up, the role of the militia in the development of an Englishman's right to keep firearms was a negative one. Notwithstanding the genuine sentimentality it engendered, the militia was, at base, an organ of the central government, and its personnel and powers were shaped by the militia act of the moment. Its members could be selected to reflect a particular political viewpoint, as had been the case in the 1650s, 1660s, and late 1680s.
The right for Englishmen to be armed was asserted not...to ensure arms to the militia, but to prevent the disarming of law-abiding subjects BY the militia. Even after an armed population was recognized as having the larger purpose of protecting English liberties, the militia is not mentioned as the source of redress. Blackstone refers only to the right of the individual subject...
While prepared to ignore the militia, the drafters of the English Bill of Rights were anxious to keep professional armies from undermining English liberty. To that end they devised another supposedly ancient right, "That the raising or keeping a standing Army within the Kingdome in time of Peace unlesse it be with Consent of Parlyament is against Law." Professional soldiers were openly branded a regrettable necessity and handled with extreme caution. Nearly 60 years later, Blackstone still considered the Crown regulars "as temporary excrescences bred out of the distemper of the State, and not as any part of the permanent and perpetual laws of the kingdom." The authors of the Bill of Rights settled the power of the sword with these twin measures: the people were to be armed; the professionals were to be kept under strict civilian control.
Where does this leave the American 2nd Amendment, with its reference to a well-regulated militia necessary to the security of a free state, and its insistence that the right of the people to keep and bear arms shall not be infringed? I would argue that the 2nd Amendment mirrors English belief in the individual's right to be armed, the importance of that right to the preservation of liberty, and the preference for a militia over a standing army.
The main clause of the 2nd Amendment preserves one of those [English] rights...Americans had fought for, and preserves it as Blackstone understood it: a right to be armed for individual self defense and to preserve essential liberties. Americans had never copied English restrictions on the right, so it was not surprising that, in contrast to the English...religious and class restrictions, and caveat that the right was "as allowed by law," the American amendment forbid any infringement upon the right of "the people" to keep and bear arms.
Secondly, Americans inherited English antagonism to professional armies and English preference for a militia, always mindful that a select militia could be dangerous. Nevertheless, just as the English tolerated a standing army, the framers felt compelled to structure a permanent army into the Constitution to guard the frontiers. As a counterbalance to the army, they felt the militia must be made a viable force... [Ed. Note: hence "well-regulated."]
Why is the militia clause in the 2nd Amendment? Quite simply to state, as it quite clearly does, that it is the militia, and not the army, that is necessary to the security of a free state. What sort of militia did the framers have in mind? As the amendment went through various drafts, Madison's description of the militia as "well-armed" and a later stipulation that it be "composed of the body of the people" were removed, either as sufficiently understood or unnecessary since the right of the people in general to have arms was not to be infringed. As in the English right, the shape of the militia was not crucial.
The Federal Gazette and Philadelphia Evening Post of Thursday, June 18, 1789, in language reminiscent of the English legacy, explained to readers the purpose of the article which became the 2nd Amendment: "As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country might pervert their power to the injury of their fellow-citizens, the people are confirmed in their right to keep and bear their private arms."
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They let the Federal Gun Control laws stand. I might add
contrary to the cheering squad here, the administration
argued in defense of the Federal Gun Control Laws, in
direct conflict with their previous decleration of individual
rights in the second ammendment.
The point is that the Constitution never granted the government the power to write law denying the citizen his individual rights. The Second Amendment was written to protect the citizens inherent right to individual gun ownership from government interference. Without the Second Amendment the government still would not have the Constitutional power to write law interfering with the citizens individual right to gun ownership. If the First Amendment was not there to protect the citizens inherent right to free speech and worship the government still would not have been granted the power to write law that interfered with the citizens right to free speech and worship.
A right does not require a reason to be a right. The position that if a valid reason cannot be proffered then the right does not exist is incorrect.
The Second Amendment could have been written A Sun rising in the east being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. The individual right to bear arms would still exist. A citizen may exercise his right to gun ownership for the purpose of using the gun for self defense or he may use it for a paperweight if he wishes.
I am fond of this observation of Thomas Jefferson. Thomas Jefferson, by no means an imprecise thinker, was well aware of this consideration. In commenting upon how the Constitution should properly be read, he said: "On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text, or invented against it, conform to the probable one which was passed.
At the time of the Constitution, the militia was all able bodied men. Think Lexington and Concord. There was no police force in most of the country, no National Guard and a tiny standing army. Without a personal right to own arms, there would have been no militia.
The collectivist argument is really stupid. The other provisions of the Bill of Rights all deal with personal rights. No amendment of the Constitution would be needed to authorize any state militia to be armed; just as no provision of the Constitution was needed to authorize the arming of the Army and Navy.
But then we're dealing with the federal courts who find rights where the Constitution is silent and disregard plain language where the Constitution is explicit because they view the Constitution as a "living" document; translation, it means what we say it means, not what it says.
Why do people who are upset that the Supreme Court refused to hear the latest gun-rights case assume that any ruling would have been positive for the preservation 2nd Amendment rights? A negative ruling by the Supreme Court would make matters infinitely worse. Better that they stay out of it and allow 226 years of precedent stand untouched.
(2) If judges have lost their history and common sense, we the people can re-learn our history and retain our own common sense. We must re-learn the fact that their power comes from us, and act accordingly rather than just sit passively and watch the parade of civic affairs pass us by.
We must return to teaching Americans about there own history. By the seventh grade (her last year of public school) my daughter had been taught multiple units on African history, flora and fauna, but still couldn't name the 50 states and capitals.
Why do people who are upset that the Supreme Court refused to hear the latest gun-rights case assume that any ruling would have been positive for the preservation 2nd Amendment rights?
The Supreme Court just refused to review two cases thatNote the use of the word could in the original post.
could have settled this issue.