cnorman18
Member
While Googling around the Net looking for Second Amenment articles, I ran across a review of "To Keep and Bear Arms: The Origins of an Anglo-American Right", By Joyce Lee Malcolm. (Cambridge: Harvard University Press. 1994) by Dave Kopel.
http://www.davekopel.com/2A/LawRev/It_Isn't_About_Duck_Hunting.htm
It's quite long, but worth reading, especially for anyone interested in the English roots of the right to bear arms and the state of affairs in the UK today.
Here are some notable excerpts:
"Almost as long as Americans have been discussing guns and government restrictions on guns, they have been looking to the example set by Great Britain. And almost without exception, they have misunderstood the legal and social reality of gun control in Great Britain. Historian Joyce Lee Malcolm's new book, To Keep and Bear Arms, does much to correct the confused American mind, particularly regarding the right to bear arms in Great Britain in the latter half of the seventeenth century--a period of internal turmoil and repression that culminated in the adoption of a British Bill of Rights including an explicit right to arms. The British Bill of Rights is a direct ancestor of the Second Amendment in the American Bill of Rights."
"In modern America, many gun control advocates readily affirm the legitimacy of firearms intended for hunting, while arguing that weapons that are mainly useful for antipersonnel purposes--handguns and "assault weapons," allegedly--should not be in civilian hands. The situation in England was just the opposite. The ruling classes were happy to have a national defense based on a popular civilian militia, rather than on an expensive standing or mercenary army. But the idea of commoners hunting was anathema. Unlike in the United States, private aristocratic estates held most English hunting land, and hunting by commoners was generally illegal.... Although some of the hunting laws criminalized possession by poor people of devices that had no other purpose but hunting, such as hunting dogs and snares, Henry VIII and Parliament made no attempt to criminalize possession of weapons, such as bows or guns, that individuals could use for personal or civil defense."
"Malcolm notes the difficulties of an argument that the Second Amendment, rather than guaranteeing a right of people to keep and bear arms, actually guarantees only the right of state governments to maintain militias. First, the phrase "the people" in the First, Fourth, Ninth, and Tenth Amendments is universally agreed to refer to people, and not to state governments. It would be odd indeed if the authors of the Bill of Rights consistently applied a single meaning to "the people" throughout the Bill of Rights, but anomalously used the phrase "the people" in the Second Amendment to refer to state governments."
"Does Malcolm's book help us answer any particular questions in the modern American gun control debate? To at least some degree, the English history helps illuminate the Second Amendment's background. The 1689 Bill of Rights was a reaction against a long string of encroachments by Charles II and James II: gun registration, gun owner registration, disarmament of political or religious "malecontents, fanatics, and sectaries," disarmament of the poor and middle class through property qualifications, and placement of law enforcement under centralized national control. All of these infringements, which helped cause the overthrow of a king, have rather obvious parallels in the agenda of the modern gun prohibition lobby. It is hard to believe that the people who put the Second Amendment in the American Constitution... would classify as "reasonable regulation" the very infringements that their English forebears had found so intolerable and that indeed were justification for overthrowing the government."
"Original intent is generally a starting point rather than a conclusion for American constitutional debate, as Malcolm recognizes, and she writes as a legal historian, not as an authoritative interpreter of the Second Amendment in the twentieth century. Still, she warns that "to ignore all evidence of the meaning and intent of one of those rights included in the Bill of Rights is to create the most dangerous sort of precedent, one whose consequences could flow far beyond this one issue and endanger the fabric of liberty". "We are not forced into lockstep with our forefathers," Malcolm concludes, "ut we owe them our considered attention before we disregard a right they felt it imperative to bestow upon us". It is one thing to say that original intent need not be the only interpretive tool; it is quite another to say that original intent and the text of the Constitution can be brushed aside by a judge's sociopolitical determination that the very rights the Second Amendment was intended to secure are no longer important. Such judicial fiat creates not a "living Constitution," but a dead one, an empty shell that provides American citizens no rights that black-robed Platonic philosophers are bound to respect."
"Unlike King James II, the government in Washington is not attempting to impose a state religion on a recalcitrant population. Yet, in part as a result of the "war on drugs," the size of the federal law enforcement establishment is the largest in history, and the increasingly large federal and state law enforcement bodies are better armed and more militarized than ever before. It was not too long ago that the F.B.I. used tanks to launch an attack with chemical weapons banned from international warfare against religious "malcontents, fanatics, and sectaries"--including two dozen children--in Waco, Texas, who wanted only to be left alone. Have American politicians become so virtuous that the temptations of power that enthralled their British counterparts of the seventeenth century need not worry modern Americans? Or are the human frailties that convinced Britain in 1689 that the right to arms was a necessary caution against the dangers of government out of control still present today?
"Joyce Malcolm does not answer these questions in To Keep and Bear Arms. She does remind us that the reason that the people of Britain in 1689 and America in 1791 bequeathed to us the right to keep and bear arms was not so that we could hunt game, but so that we could stay free."
http://www.davekopel.com/2A/LawRev/It_Isn't_About_Duck_Hunting.htm
It's quite long, but worth reading, especially for anyone interested in the English roots of the right to bear arms and the state of affairs in the UK today.
Here are some notable excerpts:
"Almost as long as Americans have been discussing guns and government restrictions on guns, they have been looking to the example set by Great Britain. And almost without exception, they have misunderstood the legal and social reality of gun control in Great Britain. Historian Joyce Lee Malcolm's new book, To Keep and Bear Arms, does much to correct the confused American mind, particularly regarding the right to bear arms in Great Britain in the latter half of the seventeenth century--a period of internal turmoil and repression that culminated in the adoption of a British Bill of Rights including an explicit right to arms. The British Bill of Rights is a direct ancestor of the Second Amendment in the American Bill of Rights."
"In modern America, many gun control advocates readily affirm the legitimacy of firearms intended for hunting, while arguing that weapons that are mainly useful for antipersonnel purposes--handguns and "assault weapons," allegedly--should not be in civilian hands. The situation in England was just the opposite. The ruling classes were happy to have a national defense based on a popular civilian militia, rather than on an expensive standing or mercenary army. But the idea of commoners hunting was anathema. Unlike in the United States, private aristocratic estates held most English hunting land, and hunting by commoners was generally illegal.... Although some of the hunting laws criminalized possession by poor people of devices that had no other purpose but hunting, such as hunting dogs and snares, Henry VIII and Parliament made no attempt to criminalize possession of weapons, such as bows or guns, that individuals could use for personal or civil defense."
"Malcolm notes the difficulties of an argument that the Second Amendment, rather than guaranteeing a right of people to keep and bear arms, actually guarantees only the right of state governments to maintain militias. First, the phrase "the people" in the First, Fourth, Ninth, and Tenth Amendments is universally agreed to refer to people, and not to state governments. It would be odd indeed if the authors of the Bill of Rights consistently applied a single meaning to "the people" throughout the Bill of Rights, but anomalously used the phrase "the people" in the Second Amendment to refer to state governments."
"Does Malcolm's book help us answer any particular questions in the modern American gun control debate? To at least some degree, the English history helps illuminate the Second Amendment's background. The 1689 Bill of Rights was a reaction against a long string of encroachments by Charles II and James II: gun registration, gun owner registration, disarmament of political or religious "malecontents, fanatics, and sectaries," disarmament of the poor and middle class through property qualifications, and placement of law enforcement under centralized national control. All of these infringements, which helped cause the overthrow of a king, have rather obvious parallels in the agenda of the modern gun prohibition lobby. It is hard to believe that the people who put the Second Amendment in the American Constitution... would classify as "reasonable regulation" the very infringements that their English forebears had found so intolerable and that indeed were justification for overthrowing the government."
"Original intent is generally a starting point rather than a conclusion for American constitutional debate, as Malcolm recognizes, and she writes as a legal historian, not as an authoritative interpreter of the Second Amendment in the twentieth century. Still, she warns that "to ignore all evidence of the meaning and intent of one of those rights included in the Bill of Rights is to create the most dangerous sort of precedent, one whose consequences could flow far beyond this one issue and endanger the fabric of liberty". "We are not forced into lockstep with our forefathers," Malcolm concludes, "ut we owe them our considered attention before we disregard a right they felt it imperative to bestow upon us". It is one thing to say that original intent need not be the only interpretive tool; it is quite another to say that original intent and the text of the Constitution can be brushed aside by a judge's sociopolitical determination that the very rights the Second Amendment was intended to secure are no longer important. Such judicial fiat creates not a "living Constitution," but a dead one, an empty shell that provides American citizens no rights that black-robed Platonic philosophers are bound to respect."
"Unlike King James II, the government in Washington is not attempting to impose a state religion on a recalcitrant population. Yet, in part as a result of the "war on drugs," the size of the federal law enforcement establishment is the largest in history, and the increasingly large federal and state law enforcement bodies are better armed and more militarized than ever before. It was not too long ago that the F.B.I. used tanks to launch an attack with chemical weapons banned from international warfare against religious "malcontents, fanatics, and sectaries"--including two dozen children--in Waco, Texas, who wanted only to be left alone. Have American politicians become so virtuous that the temptations of power that enthralled their British counterparts of the seventeenth century need not worry modern Americans? Or are the human frailties that convinced Britain in 1689 that the right to arms was a necessary caution against the dangers of government out of control still present today?
"Joyce Malcolm does not answer these questions in To Keep and Bear Arms. She does remind us that the reason that the people of Britain in 1689 and America in 1791 bequeathed to us the right to keep and bear arms was not so that we could hunt game, but so that we could stay free."
