By Kelly O'Connell ——Bio and Archives--March 19, 2013
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A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.But what does the Second Amendment really mean? And what is its history? This essay attempts a brief outline of these questions.
From "time out of mind" the Englishman had been obliged to add to his other civic duties the dangerous chore of law enforcement. His first responsibility was to defend himself. He was also expected to protect his family and his property against attack. It was assumed he would have the means at hand to do this; and he was held legally blameless for any harm inflicted upon his assailants.Further, Englishmen were also expected to protect their neighbors, as well. Says Malcolm,
It is natural to expect a man to defend himself and his loved ones, but the Englishman was obliged to protect his neighbor as well. From at least the early Middle Ages, whenever a serious crime occurred villagers, "ready appareled," were to raise a "hue and cry" and, under the supervision of the local constable or sheriff, pursue the culprit "from town to town, and from county to county," on "pain of grievous fine."The 2nd Statute of Winchester (1285) codified the demand for Englishmen to bear arms to defend themselves and others, stating:
Whereas every day robbery, homicide, and arson are committed more frequently than used to be the case, and felonies escape...it is commanded that every man shall have in his house arms for keeping the peace according to the ancient assize....In brief, all able-bodied men were held responsible to have arms and be trained in their use for defense of themselves, their family and neighbors, and the homeland. Henry VIII fined those families who had not bought their sons a bow and two arrows, and trained them how to use them, by age 7. Historian F.W. Maitland describes in The History of English Law before the Time of Edward I, how virtually all Englishmen were expected to bear arms: "The state in its exactions pays little heed to the line between free and bond, it expects all men, not merely all freemen, to have arms." Therefore, England wanted all its men people to be armed and assembled into militias. The Statute of Winchester became the foundational document creating English law enforcement. But the first explication of the armed citizen as a bulwark against tyranny is found in James' Harrington's The Commonwealth of Oceana (1656). Harrington called for an armed citizenry and denoounced government by army. English historian John Pocock described his idea: "only the armed freeholder was capable of independence and virtue." This theory was grounded in brave landowners who defended their plot of English soil, while those refusing were moral failures: "citizens who do not defend themselves abandon a vital part of their power and virtue." Harrington's model was what Pocock describes as a hardy soul, autonomous in his own defense, who could be described as an "agrarian warrior." Such a person would undoubtedly be welcomed by our own Founders, who likewise tended to be independent men of the soil, happy to mind their own business until liberty was at stake.
51. As soon as peace is restored, we will banish from the kingdom all foreign born knights, crossbowmen, serjeants, and mercenary soldiers who have come with horses and arms to the kingdom's hurt.Militias were funded by a tax levied upon anyone with an income, even the clergy and the poor. A lower class person or family might be expected to locate a modest armament or supplies, whereas someone of means was expected to produce a more formidable offering. At any time in the 17th century, there were at least 90,000 militia members between England, Scotland and Wales. The idea of a trained-to-arms populace was championed by various thinkers, such as Sir Walter Raleigh, who pointed out that the goal of a tyrant was "...to unarm his people of weapons, money and all means whereby they resist his power." Likewise, Sir Thomas More, in Utopia, urged the training of all men and women to defend their homeland and friends. The militia was ordered to train on a regular basis, employing "butts," or targets, for bow and arrow, and gun practice. The militia was a defensive force, not available for use outside the homeland. Overall, militias were more than sufficient for defense of the realm for over a thousand years.
The language of the Constitution cannot be interpreted safely except by reference to the common law and to [267 U.S. 87, 109] British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Convention of the Thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.The American history of guns and citizens predates the writing of the Declaration, Constitution, and Bill of Rights. According to Leonard Levy in Origins of the Bill of Rights, during the tense days of the American Revolution, and conversations regarding drafting the Constitution, Thomas Jefferson urged principal author James Madison to include a Bill of Rights. Madison resisted because he and many others believed rights theory was so omnipresent in America as to need no explanation, or defense. Madison relented, then glossed the States' bills of rights, gleaning the cream from the crop, while adding a few novel and ingenious twists. The Second Amendment was an innovation upon the English duty to bear arms. Madison gives the colonists a Right to bear arms, which cannot be removed by government fiat. One argument over the meaning of the Second Amendment involves whether arms can only be used by militia members or in a militia. This argument is rejected by both Levy and Malcolm. To prove that early Americans even even demanded gun ownership, Malcolm shows how arms were a desired aspect of life in the earliest States. The State's Constitutions, Bills of Rights, and also the Articles of Confederation -- the precedent before the Constitution, prove her point. For example, in the law of the 1623 Plymouth Colony, was a demand all persons be armed: "In regard of our dispersion so far asunder and the inconveniences that may befall, that every inhabitant provide himself a sufficient musket or other or other serviceable piece for war." Again, a 1639 Newport, Virginia law stated, "Noe man shall go two miles from the Towne unarmed, eyther with Gunn or Sword; and that none shall come to any public Meeting without his weapon." These examples could be expanded liberally. It is clear that the American colonial impulse was for having more armed residents, not less. Further, restrictions upon those who could, or could not, own a weapon as regards class, income or gender, were not carried across the Atlantic from England to the States. The anti-tax revolts stirred up a general distrust of English government, and especially over King George's high-handed manner. This caused an upsurge in gun ownership as Americans began to fear they may be forced to defend their land, property and lives. The standing armies left behind after the French And Indian War infuriated Americans who saw such a maneuver as a sign of subjugation. In fact, the tax proceeds from the hated Stamp Act were used to provision this force which caused fear of government by army. The intellectuals who most influenced the colonists also supported gun rights. For example, the most quoted British writer in the States, William Blackstone, was cited by Madison:
Instances of the licentious and outrageous behavior of the military conservators still multiply upon us, some of which are of such nature, and have been carried to such lengths, as must serve fully to evince that a late vote of this town, calling upon its inhabitants to provide themselves with arms for their defence, was a measure as prudent as it was legal... It is a natural right which the people have reserved to themselves, confirmed by the [English] Bill of Rights to keep arms for their own defence; and as Mr. Blackstone observes: it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.Early state constitutions reveal that the colonists and Founders well understood the need for arms to defend not just the state, but also individuals, as the Pennsylvania constitution states: "Section 21. Right to Bear Arms -- The right of the citizens to bear arms in defense of themselves and the State shall not be questioned." While John Locke and Thomas Jefferson are both well-known as defending the right to revolt against tyranny, the New Hampshire constitution goes farther, stating that to not resist tyranny is the hallmark of the slave:
[Art.] 10. [Right of Revolution.] Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind. -- June 2, 1784
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Kelly O’Connell is an author and attorney. He was born on the West Coast, raised in Las Vegas, and matriculated from the University of Oregon. After laboring for the Reformed Church in Galway, Ireland, he returned to America and attended law school in Virginia, where he earned a JD and a Master’s degree in Government. He spent a stint working as a researcher and writer of academic articles at a Miami law school, focusing on ancient law and society. He has also been employed as a university Speech & Debate professor. He then returned West and worked as an assistant district attorney. Kelly is now is a private practitioner with a small law practice in New Mexico.