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Talk:Second Amendment to the United States Constitution/english history sandbox

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Background

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English history

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The right to bear arms in English history is believed to have been regarded as a natural right for the preservation of the person[citation needed], though one Amercian historian has expressed a contrary view that the right developed over a period of 500 or so years beginning in the twelfth century. The period from the mid 1500s though to around 1700 was one of great instability based on religious divisions (between Catholics and the growing numbers Protestants) and differences that set parliamentarians (the landed gentry) against the King[citation needed]. The English Civil War did not totally resolve the powers dispute between the primarily Protestant parliament and the Catholic-leaning monarchy. From the civil war until the Glorious Revolution, militias occasionally disarmed Catholics, and the King, without the consent of parliament, likewise occasionally disarmed Protestants.[1] After the parliamentary side effectively ousted James II in favor of William and Mary parliament passed the English Bill of Rights of 1689. The Bill of Rights contained text which aspired to bind future parliaments, though this was unconstitutional itself because no parliament can, under English Constitutional Law, bind any later parliament.[2] Nevertheless, the Bill of Rights remains an important constitutional document, more for enumerating the rights of parliament over the monarchy than for contain a clause concerning a right to have arms.

Scholars and lawyers recognize that the Second Amendment has its origins in the text of the English Bill of Rights of 1689 though one disputes its relevance.[3]

This is how the English Bill of Rights statement on the right to arms is often quoted:


On the face of it, it seems that both the American and the English texts are about the granting of a right to arms; in the U.S. case, a right granted to the Militias of the individual states, and in the English case to the subjects that are protestants.For those Americans who prefer to believe that this really was the granting of a new right regard the English Bill of Rights as a moment of momentous concession. However, there are many scholars who believe simply that the references to Protestants having the right to arms was merely a reinstatement of an ancient right illegally taken away by the previous King. For a complete understanding one must read the full context of this clause to understand its meaning.


The historical link between the English Bill of Rights and the U.S. Second Amendment and them both codifying an existing right and not creating a new one has been acknowledged by the U.S. Supreme Court.[5] [6]

The English text used the term to have arms while the American text uses the term bear arms which historians have described as having a military connotation in context of the necessity for militia to protect a free state.[3]

The English law includes the proviso that arms must be as "allowed by law." This has been the case before and after the passage of the Bill of Rights. The Bill did not override earlier restrictions on the ownership of guns for hunting written to preserve the hunting rights of the landed aristocracy, and applying the principal of parliament's right to repeal, explicitly of implicitly. [7] A few, however, contend that, as the Bill of Rights provision has not been repealed, it remains effective, parliamentary supremacy notwithstanding.[8] Parliament thouugh has repeatedly increased restrictions on firearms or other defensive weapons so as to make the legal possession of them virtually impossible. These actions have generally reflected British public's concerns over their potential misuse as weapons of offense. The Supreme court of the United States also noted that the American right is not absolute and is subject to legislative controls, though it mentioned reasonableness as to access by felons and the insane. However, the American Second Amendment, because of the nature of the U.S. Constitution, is much less subject to diminution or elimination.[citation needed]

There is some difference of opinion as to how revolutionary the events of 1688-89 actually were and several commentators make the point that the provisions of the Bill of Rights did not represent new laws, but rather stated existing rights. Mark Thompson wrote that, apart from determining the succession, the Bill of Rights did "little more than set forth certain points of existing laws and simply secured to Englishmen the rights of which they were already posessed [sic]." [9] Some American writers have very different opinion. The scholar [citation needed] Rich Smith contends that right to bear arms only attached to Protestants.[10] and another scholar [citation needed] David Hemenway, identifies the text as a gun control measure drafted by wealthy Protestants to restrict firearm ownership to other wealthy upper-class individuals, pointing to the word "condition" as a euphemism for socioeconomic status.[11] English law had thus recognized the right of Protestants to have arms suitable for their defense as allowed by law. Notwithstanding the restrictions in effect before 1640 these had not interfered with the basic duty of certain English people to keep arms for militia service. It was the caching of large quantities of weapons by Catholics that was deemed to be potentially threatening during transition from the old militia to the new.[12] Before and after the Bill of Rights, the government could always disarm any individual or class of individuals it considered dangerous to the peace of the realm.[12] In 1765, William Blackstone wrote the Commentaries on the Laws of England describing the right to have arms in England during the eighteenth century as a natural right of the subject that was "also declared" in the Bill of Rights.[13][14]

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.[15]

In both England and America, subjects and citizens have created militias.[citation needed] Beginning with King Henry II's Assize of Arms of 1181, certain English subjects were obligated to keep and bear arms for military duty.[16][17][18][19] Later, 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.[20] 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.[21]

Notes and Citations

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  1. ^ Malcolm, "The Role of the Militia," pp. 139-51
  2. ^ Barnett, Law, p. 172
  3. ^ a b Wills, Whose Right, pp. 73-4
  4. ^ a b 1688 c.2 1 Will. and Mar. Sess. 2
  5. ^ "This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we (the United States Supreme Court) said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed ..”. Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded inusing select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 31–53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103–106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” 1 W. & M., c. 2, §7, in 3 Eng. Stat. at Large 441 (1689). This right has long been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights andWhat It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of America 122 (1825) (hereinafter Rawle)." From the Opinion of the Court in District of Coöimbia versus Heller http://www.supremecourt.gov/opinions/07pdf/07-290.pdf
  6. ^ Justice Antonin Scalia, wrote that the "the right of the people to keep and bear Arms, shall not be infringed" was a just a controlling one and referred to it as a pre-existing right of individuals to possess and carry personal weapons for self-defense and intrinsically for defense against tyranny. As with the English law "[l]ike most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." District of Columbia v Heller Sup. Ct. Decision
  7. ^ "Where a later enactment does not expressly repeal an earlier enactment which it has power to override, but the provisions of the later enactment are contrary to those of the earlier, the latter by implication repeals the earlier." R v. Burke, [1998] EWHC Admin 913; "[T]he Bill of Rights...was declaratory of the common law. It contained in it its own words of limitation, namely that the right to have arms for self-defence is limited by the words 'and as allowed by Law'. The law is a changing thing. Parliament by statute can repeal the common law...Where the Bill of Rights says that 'the Subjects may have arms for their defence suitable for their condition and as allowed by law', 'and as allowed by law' means 'and as allowed by law for the time being'[.]" R v. Burke, [1999] EWCA Civ 923
  8. ^ "The Bill of Rights remains unrepealed and practice or custom, however prolonged...can not be relied on by the Crown as justifying any infringement of its provisions[.]" Bowles v. Bank of England
  9. ^ Thompson, Mark (1938). Constitutional History of England. qtd. in Maer and Gay, p. 4
  10. ^ Smith, The Bill of Rights, p. 27. "Some of the freedoms the authors were able to include in the English Bill of Rights were: the right to bear arms as long as you were a member of the correct church[.]"
  11. ^ Hemenway, p. 154
  12. ^ a b Malcolm, To Keep and Bear Arms, p. 51
  13. ^ Ely and Bodenhamer, pp. 89-91
  14. ^ Heyman, pp. 253-9. "Finally, we should note that (contrary to Kates's assertion) Blackstone nowhere suggests that the right to arms derives from "the common law." Instead, this is a right that is secured by "the constitution," and in particular by the Bill of Rights."
  15. ^ Avalon Project, Yale Law School, English Bill of Rights, 1689, "An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown"
  16. ^ Oxford English Dictionary, Second Edition, 1989
  17. ^ Merkel and Uviller, pp. 23, 194
  18. ^ Pepper, et al., p. 290
  19. ^ Wills, "To Keep and Bear Arms," p. 62
  20. ^ "The history of policing in the West, Collective responsibility in early Anglo-Saxon times", Encyclopedia Britannica online.
  21. ^ Levy, pp. 136-7

References

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Primary

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Secondary

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Books

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  • Adamson, Barry (2008). Freedom of Religion, the First Amendment, and the Supreme Court. Pelican Publishing. ISBN 978-1589805200.
  • Anderson, Casey (2009). Guns, Democracy, and the Insurrectionist Idea. Ann Arbor, MI: University of Michigan Press. ISBN 978-0472033706. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  • Barnett, Hilaire (2004). Constitutional & Administrative Law. Routledge Cavendish. ISBN 1859419275.
  • Bickford, Charlene; et al., eds. (2004). Documentary History of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791: Correspondence: First Session, September-November 1789. Vol. 17. The Johns Hopkins University Press. ISBN 978=0801871627. {{cite book}}: Check |isbn= value: invalid character (help); Explicit use of et al. in: |editor= (help)
  • Bogus, Carl T. (2001). The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms. New York: The New Press. ISBN 1565846990.
  • Boynton, Lindsay Oliver J. (1971). The Elizabethan Militia 1558–1638. David & Charles. ISBN 0-7153-5244-X. OCLC 8605166.
  • Carter, Gregg Lee (2002). Guns in American Society. ABC-CLIO.
  • Charles, Patrick J. (2009). The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court. McFarland. ISBN 9780786442706.
  • Cooke, Edward Francis (2002). A Detailed Analysis of the Constitution. Lanham, MD: Rowman & Littlefield Publishers. ISBN 0-7425-2238-5.
  • Cornell, Saul (2006). A Well-Regulatad Militia — The Founding Fathers and the Origins of Gun Control in America. New York, New York: Oxford University Press. ISBN 9780195147865.
  • Cottrol, Robert (1994). Gun Control and the Constitution: Sources and Explorations on the Second Amendment. Taylor & Francis.
  • Cramer, Clayton E.; Olson, Joseph (2008). "What Did "Bear Arms" Mean in the Second Amendment?". Geo. J.L. & Pub. Pol'y. 6 (2). SSRN 1086176.{{cite journal}}: CS1 maint: multiple names: authors list (link)
  • Crooker, Constance Emerson (2003). Gun Control and Gun Rights. Greenwood Publishing Group. ISBN 9780313321740.
  • Denson, John V. (1999). The Costs of War: America's Pyrrhic Victories (2 ed.). Transaction Publishers. ISBN 9780765804877.
  • Doherty, Brian (2008). Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment. Washington, D.C.: Cato Institute. ISBN 978-1933995250.
  • Dulaney, W. Marvin (1996). Black Police in America. Bloomington: Indiana University Press. ISBN 0253210402.
  • Ely, James W. (2008). The Bill of Rights in Modern America. Bloomington: Indiana University Press. ISBN 978-0253219916. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  • Foner, Eric (1991). The Reader's Companion to American History. Houghton Mifflin Harcourt. ISBN 0395513723. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  • Frey, Raymond (2003). A Companion to Applied Ethics. Cambridge, MA: Blackwell Publishing. ISBN 1557865949. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  • Halbrook, Stephen P. (1989). A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees. Greenwood Publishing Group.
  • Halbrook, Stephen P. (1994). That Every Man Be Armed: The Evolution of a Constitutional Right (Independent Studies in Political Economy). Oakland, CA: The Independent Institute. ISBN 0945999380.
  • Hemenway, David (2007). Private Guns, Public Health. University of Michigan Press. ISBN 9780472031627.
  • Kruschke, Earl R. (1995). Gun Control: A Reference Handbook. Santa Barbara, CA: ABC-CLIO. ISBN 087436695X.
  • Levy, Leonard W. (1999). Origins of the Bill of Rights. New Haven, CT: Yale University Press. ISBN 0300078021.
  • Malcolm, Joyce Lee (1996). To Keep and Bear Arms: The Origins of an Anglo-American Right. Cambridge: Harvard University Press. ISBN 0674893077.
  • Merkel, William G. (2002). The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent. Durham, NC: Duke University Press. ISBN 0822330172. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  • Millis, Walter (1981). Arms and Men. Rutgers University Press.
  • Mulloy, D. (2004). American Extremism. Routledge.
  • Pepper, John (2005). Firearms and Violence. A Critical Review. Washington, DC: National Academies Press. ISBN 0309091241. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  • Pole, J. R. (2003). A Companion to the American Revolution (Blackwell Companions to American History). Cambridge, MA: Blackwell Publishers. ISBN 1405116749. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  • Renehan, Edward J. (1997). The Secret Six: The True Tale of the Men Who Conspired With John Brown. Columbia, SC: University of South Carolina Press. ISBN 1570031819.
  • Shapiro, Ilya (2008). Cato Supreme Court Review 2007-2008. Washington, D.C: Cato Institute. ISBN 978-1933995175.
  • Smith, Rich (2007). The Bill of Rights: Defining Our Freedoms. ABDO Group. ISBN 9781599289137.
  • Schmidt, Steffen (2008). American Government and Politics Today: The Essentials. Belmont, CA: Wadsworth Publishing. ISBN 978-0495571704. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  • Spitzer, Robert J. (2001). The Right to Bear Arms: Rights and Liberties under the Law. Santa Barbara, CA: ABC-CLIO. ISBN 1576073475.
  • Szatmary, David P. (1980). Shays' Rebellion: the Making of an Agrarian Insurrection. Amherst: University of Massachusetts Press. ISBN 0870232959.
  • Tucker, St. George (1996). Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws, of the Federal Government of the United States, and of the Commonwealth of Virginia: In Five Volumes. The Lawbook Exchange, Ltd. ISBN 9781886363151. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  • Tushnet, Mark V. (2007). Out of Range: Why the Constitution Can't End the Battle Over Guns. Oxford University Press. pp. xv. ISBN 9780195304244.
  • Rabban, David (1999). Free Speech in its Forgotten Years. Cambridge University Press.
  • Rawle, William (1829). A View of the Constitution of the United States of America (2 ed.). P.H. Nicklin.
  • Spooner, Lysander (1852). An Essay on the Trial by Jury. John P. Jewett and Co.
  • Vile, John R. (2005). The Constitutional Convention of 1787: A Comprehensive Encyclopedia of America's Founding (2 Volume Set). Santa Barbara, CA: ABC-CLIO. ISBN 1851096698.
  • Williams, David H. (2003). The Mythic Meanings of the Second Amendment: Taming Political Violence in a Constitutional Republic. New Haven, CT: Yale University Press. ISBN 0300095627.
  • Wills, Garry (2000). Saul, Cornell (ed.). Whose Right to Bear Arms did the Second Amendment Protect?. Boston: Bedford/St. Martin's. ISBN 0312240600.
  • Wills, Garry (2002). A Necessary Evil: A History of American Distrust of Government. New York: Simon & Schuster. pp. 256–7. ISBN 0-684-87026-6.
  • Winterer, Caroline (2002). The Culture of Classicism: Ancient Greece and Rome in American Intellectual Life, 1780-1910. Baltimore: Johns Hopkins University Press.
  • Young, David E. (2001). The Origin of the Second Amendment: A Documentary History of the Bill of Rights 1787-1792 (2 ed.). Golden Oak Books. ISBN 0962366439.

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