About
The concept of a universal militia originated in England.[7][8][9] The requirement that subjects keep and bear arms for military duty[10][11][12][13] dates back to at least the 12th century when King Henry II, in the Assize of Arms, obligated all freemen to bear arms for public defense. King Henry III required certain subjects between the ages of fifteen and fifty (including non-land-owning subjects) to bear arms. The reason for such a requirement was that without a regular army and police force (which was not established until 1829), it was the duty of certain men to keep watch and ward at night to capture and confront suspicious persons. Every subject had an obligation to protect the king’s peace and assist in the suppression of riots.[14]
In response to complaints that local people were reluctant to take up arms to enforce justice for strangers, The Statute of Winchester of 1285 (13 Edw. I) declared that each district or hundred would be held responsible for unsolved crimes. Each man was to keep arms to take part in the hue and cry when necessary.[15]
Following the Protestant overthrow of the Catholic King James II, the Protestant controlled Parliament obliged the newly installed Protestant monarchs William and Mary to enact the English Bill of Rights of 1689 which granted Protestants a series of liberties including the right to arms for self defense: “That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.”[16] For instance, in 1780 after some riots, the recorder of London – the city attorney – was asked if the right to arms protected armed groups, he wrote: “The right of his majesty’s Protestant subjects, to have arms for their own defense, and to use them for lawful purposes, is most clear and undeniable.”[17] At least one historian describes this as the first instance when the customary duty to bear arms transitioned into a right.[18][19] Other historians describe this as an example of the traditional restricting of weapons access for one class of people over another, in this case the Protestant victors over the vanquished Catholics.[19][20] Additionally, this reflected the popular dread of a standing army and the preference instead for a select militia. These values would have a long life both in England and America.[19]
Sir William Blackstone’s Commentaries on the Laws of England describes the right to arms in England during the eighteenth century:
The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.[21]
The right of some English subjects to possess arms was recognized under English common law; however many English subjects were not permitted by law to possess arms.[18] Regarding these constraints, St. George Tucker wrote in 1803:
In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.[22]
[edit] Experience in America prior to the U.S. Constitution
In no particular order, early American settlers viewed the right to arms and/or the right to bear arms and state militias as important for one or more of these purposes:[23][24][25][26][27][28][29][30][31][32]
- deterring undemocratic government;
- repelling invasion;
- suppressing insurrection;
- facilitating a natural right of self-defense;
- participating in law enforcement;
- slave control in slave states.
Which of these considerations they thought were most important, which of these considerations they were most alarmed about, and the extent to which each of these considerations ultimately found expression in the Second Amendment is disputed.
During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, which included a number who were loyal to British imperial rule. As defiance and opposition to the British rule developed, a distrust of these Loyalists in the militia became widespread among the colonists, known as Patriots, who favored independence from British rule. As a result, these Patriots established independent colonial legislatures to create their own militias which excluded the Loyalists and then sought out to stock up independent armories for their militias. In response to this arms build up, the British Parliament established an embargo on firearms, parts and ammunition on the American colonies.[34]
British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Rights, Blackstone’s summary of the Declaration of Rights, their own militia laws and common law rights to self-defense.[35] While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the Patriot militia, some have argued that there is no evidence that the British sought to restrict the traditional common law right of self-defense.[35]
The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 Boston objecting to the British army suppression of colonial opposition to the Townshend Acts:
Instances of the licentious and outrageous behavior of the military conservators of the peace 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 defense, was a measure as prudent as it was legal: such violences are always to be apprehended from military troops, when quartered in the body of a populous city; but more especially so, when they are led to believe that they are become necessary to awe a spirit of rebellion, injuriously said to be existing therein. It is a natural right which the people have reserved to themselves, confirmed by the 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.[35]
The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with various state and regional militia units. In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist Militia and Hessian mercenaries. Following the Revolution, the United States was governed by the Articles of Confederation. An unworkable division of power between Congress and the states caused military weakness, and the standing army was reduced to as few as 80 men.[36] There was no effective federal military response to an armed uprising in western Massachusetts known as Shays’ Rebellion.[37] Subsequently, the Philadelphia Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size.[38][39] Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power.[40][41]
Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that James Madison “did not invent the right to keep and bear arms when he drafted the Second Amendment; the right was pre-existing at both common law and in the early state constitutions.”[42] In contrast, historian Jack Rakove suggests that Madison’s intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that the militias would not be disarmed.[43]
One aspect of the gun control debate is the conflict between gun control laws and the alleged right to rebel against unjust governments. Some believe that the framers of the Bill of Rights sought to balance not just political power, but also military power, between the people, the states and the nation,[44] as Alexander Hamilton explained in 1788:
[I]f circumstances should at any time oblige the government to form an army of any magnitude[,] that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.[44][45]
Some scholars have said that it is wrong to read a right of armed insurrection in the Second Amendment because clearly the founding fathers sought to place trust in the power of the ordered liberty of democratic government versus the anarchy of insurrectionists.[46][47] Other scholars, such as Glenn Reynolds, contend that the framers did believe in an individual right to armed insurrection. The latter scholars cite examples, such as the Declaration of Independence (describing in 1776 “the Right of the People to … institute new Government”) and the New Hampshire Constitution (stating in 1784 that “nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind”).[48]
There was an ongoing debate in the 1780s about “the people” fighting governmental tyranny (as described by Anti-Federalists); or the risk of mob rule of “the people” (as described by the Federalists) related to the ongoing revolution in France.[49] A widespread fear, during the debates on the ratification of the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens,[50] prohibiting citizens from arming themselves[35] or the federal government prohibiting the southern tradition of using their state militia for slave control.[31]
