Individual or Collective Right – A Brief History of the 2nd Amendment

Posted: April 23, 2012 in Uncategorized

            Today we are struggling with people who believe the right to keep and bear arms is somehow a collective right, tied to militia membership, and not an individual natural right.  This false assumption is based on today’s understanding and rhetoric.  We also have the ambiguous 1939 Supreme Court case, U.S. vs. Miller that significantly fails to embrace the founding generation’s intent.  The other area we have is the 2nd Amendment’s preamble that some point to as a reason to support the collective, militia tied concept.  Yet history and understanding of bearing arms teaches us what is really the intent – the right to keep and bear arms is an individual natural right!

            One key to understanding any rights found in what we know of as the Bill of Rights is the deep tie to our English roots, as a country.  The colonial citizens were mostly English citizens serving under the Crown with guidance from the Parliament.  Of course, self-rule was also deep rooted due to the fact colonies were separated from England by a little thing called the Atlantic Ocean.  The colonists became very independent and felt extremely competent to legislate their daily lives.

            Come with me on a swing back in time, before the 17th and 18th centuries, before 1689 when the English Bill of Rights came into existence…back to a time when it was not a right to bear arms…not a right at all but rather a requirement.  Our first stop takes us back to the 9th Century under Alfred the Great.  As Scott Bradley reminds us “…all of his peoplewere required to be armed with personal weapons and were subject to perform in the defense of the nation.”

Moving forward, it is now the 13th Century and you are a citizen under Henry II.  You are required to keep certain arms if you are a freeman.  The next century, under Henry III you’re now required to have weapons other than a knife.  This was no longer restricted to freemen but all men aged 15 to 50, even those who did not own lands.  Back in these times the Crown’s officers actually conducted inspections to insure you are properly armed.  Can you imagine aknock on the door with a servant of the King of England asking to see your weapons to make sure you can assist in keeping law and order, to aid in maintaining the King’s peace?

            Although today we have brave men and women serving to protect and defend us this concept of a police force was nowhere to be found in the 14th and 15th centuries.  Do you know when we first started having organized police forces?   It was not until 1829.  Back in the time of Henry III all men are responsible to have arms, and know how to use them (well trained) it was every male citizen’s obligation to help stand guard day and night.  It was also a responsibility to answer, and join, the ‘hue and cry’ in the event of a crime.  They were relied on to help in the pursuit of those who resisted arrest or escaped after being arrested for a crime.

            Keep in mind there was full awareness a standing army was extremely expensive, hard to maintain, and a potential threat to both liberty and the Crown.  By the time of the American Revolution was it not the idea that George III sent troops to live among the citizens and the presence of those troops that truly rubbed nerves raw?

            But we’re ahead of our timeline.  Let’s fast forward to 1671.  By this time people were quite use to having arms.  Keeping arms was not a matter of controversy; it was a matter of fact.  Then Parliament changed the entire view of keeping and bearing arms.  A statute was enacted focused on hunting…it was a game act used to begin disarming Englishmen.  The restrictions on the ownership of land were so strict it evolved to a point where almost all Englishmen found themselves in violation of the law when it came to owning firearms.

            As this took hold over a decade Charles II used this period to disarm his political opponents in the Whig party, in 1686.  Since he was successful Charles’s successor, James IIfocused on banning firearms for all Protestants.  This not only infuriated Protestants, as Catholics made up only about 2% of the English population at the time, this level of oppression led to the Glorious Revolution of 1688 and 1689.  A few minutes ago I mentioned something about 1689…what took place, what was created?  That’s right, the English Bill of Rights.

            We are also in the time of John Locke, Isaac Newton, Hobbes, von Pufendorf and other influential philosophers that helped spark more than the Enlightenment Era.  It was the period where natural rights, liberty, social contract, and federalism were born.  Keep in mind this was also the time when words that are quite familiar today started to be placed inside contracts between the people and those governing the people.  John Adams would quote Serjeant-at-Law William Hawkins’s Pleas of the Crown where he declared; “Here every private person is authorized to arm himself.

The English Declaration of Rights made the right to bear arms a personal, individual right.  It went through many drafts before the words that would restore the rights of Protestants, and all Englishmen, were finalized.  Caveats existed, as they do today, to insure those possessing arms were qualified and allowed by law to have them.  Yet, again, it was a personal right designed for the people to be able to provide personal security for their liberty and their property.

            By the 18th century it was an accepted axiom people had a natural right to have personal firearms.  Standing armies were seen as a threat to liberty while armed citizens were seen as a protection of liberty, both personal and societal.  Boston, a hot bed for patriots frustrated by the oppressive laws coming from England, had a newspaper titled A Journal of the Times.  In 1768 there was an article urging Americans to retain their weapons and reminding them of the protection they had under the English Bill of Rights.  They went so far as stating, “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.

            Blackstone’s Commentaries, the most quoted work by the founders, outlined the right “to have” arms as indispensable “to protect and maintain inviolate the three great and primary rights of personal security, personal liberty, and private property.”  Listen closely; security, liberty, and private property (adapted by Jefferson to become the ‘pursuit of happiness’), all personal and all vital for maintaining our freedoms, our liberty.

            Liberty is an often used yet little understood aspect of what we are all about in principle.  The sixth, and in my view the most precious, goal of the Constitution’s preamble is to ‘secure the Blessings of Liberty to ourselves, and our Posterity.’  Where do guns, and this right to keep and bear arms, fit into achieving this goal?  James Burgh, one of the most influential philosophers in England and a Lockean scholar, wrote in his well-known and well-read series,Political Disquisition of 1774, the words that will hopefully move you as much as they did me.

            He invested more than 100 pages in his three volumes to the topic of our right to be armed.  Do you think it was an important consideration?  He contrasts the difference between the values of an armed public compared to that of a society with standing armies.  He wrote that arms “are the only true badges of liberty.”

            Let’s quickly look at state constitutions created before the U.S. Constitution. Pennsylvania, in 1776, was clear and to the point.  The people’s right to bear arms was “for the defence of themselves.”  No mention of a militia, no collective confusion.  Knowing a good thing Vermont copied the language for their Constitution in 1777.  In 1780 John Adams, in writing the Massachusetts Constitution, was the first to use the phrase we know so well;  “To keep and bear arms.”

            During the ratification debates, between the Federalists and Republicans (anti-federalist as labeled by most writers of history) many issues were discussed, the people’s right to be armed was accepted by all – with the main debate coming down to whether or not this natural right needed to be written into our Constitution.  A Massachusetts republican,Theodore Sedgwick, raised his voice to articulate so well that “a nation of freemen who know how to prize liberty and who have arms in their hands,” cannot be subdued.

King George III and his military men, especially General Thomas Gage, knew the first major targets to quell the uprising in the colonies were the arms being gathered and stored at Concord and the gun powder stored in Williamsburg.  The people knew the British wanted them disarmed.  Facing a nation armed and trained in the art of hunting was ominous, and proved a challenge the mighty British army would succumb to.

            It is now June of 1789, after the Constitution was ratified, after much debate in state conventions. The first Congress was in session.  Madison finally had his chance to present the ideals of personal rights that should be considered for addition to the Constitution.  It was actually the fulfillment of a campaign promise he had made.

Here are a couple of key things to know.  You can read the annals of the first congressional session at the Library of Congress.  (As a matter of fact, create your own MyLOC account to build an original source bookshelf tailored to your studies.)  He DID NOT make our right to bear arms dependent on being a part of the militia.  Read his personal notes where he writes, “They relate 1st to personal rights…guards for private rights” He referenced the English Declaration of Rights.  He recommended all the rights be integrated into the existing Constitution.  Where were these rights to be placed?  In Article 1, Section 9, between Clause 3 & 4.  This would have nestled them between ‘no ex post facto law being passed’ and ‘no Capitation, or other direct tax.’  (A whole different dance we can dance sometime.)  Each personal rights; individual protection…not collective!

            Roger Sherman of Connecticut pointed out to actually place them within the document would add something to a document already signed off on while the signers were not present to agree to it.  Rather than completely opening the need for a re-ratification it was decided the proposed amendments would come at the end of the document.  Thus was born our Bill of Rights and the 2nd Amendment among those rights.

Its preamble was not meant to create the right to bear arms as a collective right.  It is, and always has been, a natural right of individuals.  It remains an individual right, self-defense is an inalienable right we should stand in defense of always.  Should we ever become a disarmed society tyranny will have no fear of oppressing the citizenry…history has far too many lessons regarding the fact a disarmed society is an enslaved society.

            Is this an individual right or collective?  Good…individual and history leaves no doubt this is what it is and this is what it has always been!  The sixth goal of our preamble is to “secure the Blessings of Liberty to ourselves and our Posterity.”  For our Posterity…the gun is the badge of what?  Right, LIBERTY!  This is just a brief history…please, please, please in this busy campaign season and always find the time, make the time to STUDY OUR HISTORY.

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