Posted on 01/28/2008 8:39:17 AM PST by kiriath_jearim
The case of District of Columbia et al v. Dick Anthony Heller has put the question of the Second Amendment before the Supreme Court for the first time in more than half a century. In an amicus brief filed with the Court 15 historians argue that the DC law is consistent with the Amendment's history. An excerpt of the brief appears below.
Click here to read the full brief.
http://www.gurapossessky.com/news/parker/documents/07-290tsajackn.rakove.pdf
INTRODUCTION AND SUMMARY OF ARGUMENT
The central question is whether the Second Amendment protects a private right to keep handguns and other firearms, independent of an individual’s membership in a state-regulated militia. As a problem for constitutional historians, the question can be elaborated and restated in this way: Did the framers and ratifiers of the Amendment believe they were constitutionally entrenching an individual right to keep arms for personal protection? Or did they conceive the Amendment to achieve a different end, by affirming that a “well-regulated militia” of citizen-soldiers would preserve “the security of a free state,” principally by lessening the need for a republican government to depend on a standing army?
Historians can best assess these claims by reconstructing the context within which the adopters of the Amendment acted. Recovering that context involves more than snatching a line from Blackstone’s Commentaries or Madison’s 46th Federalist, or ringing endless changes on the references to hunting and fowling in the Dissent of the Anti-Federalist minority in the Pennsylvania ratification convention. It instead involves explaining how a popular right to keep and bear arms figured in the ratification debates of 1787-1788; how that debate was in turn shaped by the Militia Clause of Art. I, §8; and why that clause appeared to threaten key Anglo-American political ideas dating to the Glorious Revolution of 1688-1689. Setting the context for the Second Amendment also requires exploring analogous provisions in the parliamentary Bill of Rights of 1689 and the declarations of rights that accompanied the first state constitutions.
Once explored, this context establishes that the private keeping of firearms was manifestly not the right that the framers of the Bill of Rights guaranteed in 1789. Though Anglo-American political tradition did indeed value the idea of an armed populace, it never treated private ownership of firearms as an individual right. The right stated in the seminal English Bill of Rights of 1689 vested not in individuals but in Parliament, which remained free to determine “by law” which Protestant subjects could own which weapons and how they could be used. Nor did the first American constitutions and declarations of rights include clauses protecting private use of firearms.
The right to keep and bear arms became an issue in 1787-1788 only because the Constitution proposed significant changes in the governance of the militia, an institution previously regulated solely by state law. Anti-Federalists argued that Congress would abuse its proposed authority to organize, arm, and discipline the militia by allowing that venerated institution to atrophy from neglect and lack of funding. A national government that could command permanent armed forces with its own resources would gain an engine for tyranny. Republican political thinking had long regarded standing armies as a danger to liberty, and a militia of citizen soldiers as one of its greatest bulwarks. Anti-Federalists rehearsed these arguments, and several ratification conventions—notably Virginia and New York—adopted resolutions affirming that the right to keep and bear arms, when tied to service in the militia, merited constitutional protection. Nothing in the ratification debates of 1787-1788, however, indicated that the exercise of this right required limiting the customary police powers of state and local government.
Federalist supporters of the Constitution dominated the First Congress that met in the spring of 1789. In framing the Second Amendment, they simultaneously sought to assuage the expressed Anti-Federalist concern about the maintenance of the militia while preserving congressional authority over its organization, arming, and discipline. They rejected language that would have modified that authority, including a qualifying provision, proposed by the House of Representatives, defining the militia as “composed of the body of the people.” Acceptance of that definition would impair congressional authority to determine how extensive membership in the militia should be.
Nothing in this argument challenges the idea that eighteenth-century Americans had ready access to firearms, or that they valued the concept of a well-armed citizenry. Individuals were legally free to purchase and keep weapons as they could other property; but like other forms of property, the keeping of firearms was subject to extensive legal regulation. What is at dispute is whether legal rights of private ownership were what the Second Amendment constitutionally entrenched. During this period, Americans were hardly shy about identifying and discussing such fundamental rights as representation, trial by jury, or freedom of conscience, or the natural rights to life, liberty, and property. The fact that references to the keeping of firearms are so few and terse, or that the modern academic controversy over the Second Amendment has been forced to squeeze so much modern interpretive blood from so few evidentiary turnips, is itself an indicator of how minor a question this was at the time. The same cannot be said about the role of the militia in the constitutional order. That was the subject that was patently in dispute in 1787-1789, and that is why the exceptional preamble to the Second Amendment is a true guide to its original meaning.
ARGUMENT
Even after the parliamentary Bill of Rights of 1689 allowed certain classes of Protestant subjects to keep arms, British constitutional doctrine and practice subjected the limited right therein recognized to extensive legal regulation and limitation.
The closest English antecedent to the American notion of a right to bear arms appears in the Bill of Rights, the parliamentary reenactment in December 1689 of the Declaration of Rights that the new monarchs, William and Mary, accepted seven months earlier after the Glorious Revolution forced James II to vacate his throne. Knowledgeable Americans were familiar with the Bill of Rights and the circumstances of its creation. Americans saw the English document as part of a common constitutional tradition, a binding pledge by the Crown to acknowledge the legal supremacy of Parliament and thereby respect the rights of the people.
That link between parliamentary supremacy and popular rights is critical to understanding the import of Article VII of the Bill of Rights, which provided “That the Subjects which are Protestants may have Armes for their defence Suitable to their Condition and as allowed by Law.” The formal grievance that Article VII answered was that James II had violated settled law “By causing several good Subjects being Protestants to be disarmed at the same time when Papists were both armed and Employed contrary to Law.” Bill of Rights (1689) reprinted in 5 The Founders’ Constitution 1-2 (Philip Kurland and Ralph Lerner, eds. 1987). The authors of the Bill of Rights were reacting to the efforts of Charles II and James II to maintain Stuart rule through a standing army increasingly officered and manned by Irish Catholics. Commissioning Catholics as military officers did indeed violate the Test Act, which required officeholders to swear an oath denying Catholic doctrine on transubstantiation. In the paranoiac atmosphere of the 1680s, James’s open practice of Catholicism and the birth of his male heir made the fear of a Catholic restoration all the more ominous.
The arms-bearing right that the Bill of 1689 affirmed, then, was a response to this specific situation, tied to the belief that an armed Protestant population would safeguard the realm against a Catholic restoration. It did not establish a general right of all persons to keep weapons, and especially firearms, for purposes of individual defense. An earlier version of Article VII could be read to grant the right to all Protestants. But that expansive possibility was checked when the House of Lords added the crucial qualifying language, “Suitable to their Condition and as allowed by Law.” (Lois Schwoerer, To Hold and Bear Arms: The English Perspective 76 Chicago-Kent L Rev. 30-48 (2000). The first qualification tracked a long history of legislation making the possession of weapons, and again especially firearms, dependent on the holders’ social and economic status. The second qualification was a reference to the Game Law of 1671, which allowed lords of manors to appoint gamekeepers to “take and seize all such guns” used by “divers disorderly persons” to hunt and trap “game intended to be preserved” for the higher classes of English society. 6 English Historical Documents 466-467 (Andrew Browning, ed., 1988). Adoption of the Bill of Rights did not affect Parliament’s capacity to regulate who could or could not possess firearms. In fact, when a new Game Act was adopted in 1693, the House of Commons rejected (169-65) a proposal allowing “every Protestant to keep a musket in his House for his defence not withstanding this or any other Act.” Many members voting had sat in Parliament in 1689; they evidently did not read Article VII as establishing a broad-gauged right all Protestants could claim. Schwoerer, Hold and Bear Arms, supra at 50-51.
The notion that Article VII made ownership of firearms a fundamental right immune to substantive regulation fails for a broader reason. The lasting constitutional significance of the Bill of Rights was not only to identify certain rights of the subject that merited protection, but also to lay down the basic premises that shaped British constitutionalism thereafter: that the monarch could not make law simply by royal edict, but that he must rule lawfully, with the consent of Parliaments freely elected and frequently assembled. The concept of parliamentary supremacy, as exercised through the king-in-Parliament, was the great principle the Bill of Rights vindicated. The liberty Englishmen cherished would be secured by confirming that a Parliament respectful of their rights and representative of society would have sovereign authority to make law. Article VII endorsed the idea that well-to-do Protestants might keep arms against the threat of a Catholic restoration, but as the formula “according to law” made clear, this imposed no limit on the reach of parliamentary power.
That understanding also informed a much-cited passage from Sir William Blackstone’s Commentaries (1765). “The fifth and last auxiliary right of the subject . . . is that of having arms for their defence, suitable to their condition, and such as are allowed by law,” Blackstone wrote, citing the Bill of Rights. This was “indeed, a publick allowance under due restraints, 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.” 1 William Blackstone, Commentaries *139. Notwithstanding the reference to “self-preservation,” this passage cannot be construed to assert an unregulated private right of self-defense, for two reasons. First, Blackstone’s corpus of five “subordinate” or “auxiliary” rights involve the subject’s relation to public authority, respectively through the constitution of Parliament; the limitation on royal prerogative; access to courts of justice; the right to petition; and finally, the right to arms as a security against oppression. Id. at *136-139. Second, the phrases “suitable to their condition, and such as are allowed by law,” and “under due restraints” denote the regime of parliamentary regulation that the Bill of Rights made the fundamental principle of British constitutionalism. Blackstone was an unequivocal defender of that regime. “So long therefore as the English constitution lasts,” Blackstone wrote in the very next chapter, “we may venture to affirm, that the power of parliament is absolute and without control.” Id. at 157. Whatever principle the Bill of Rights stated always lay within the power of Parliament to apply and regulate, and thus to modify or limit. In this sense, the Bill of Rights did not establish a catalogue of rights in the modern, positivist, constitutionally-entrenched sense of the term. Like the clauses of Magna Carta, all of its provisions were subject to modification, control, and repeal by subsequent Parliaments. So long as Parliament sat, Blackstone envisioned no situation under which the auxiliary right of resistance could be invoked. ...
The POTUS and his in-Justice Department has asked the SCOTUS to suspend the rights of Americans to Keep and Bear Arms.
One of the co-authors of this report, Saul Cornell, is a big anti-gunner. [url](http://volokh.com/posts/1173746455.shtml[/url]) Also note an advertisement on the webpage that this article comes from that endorses Obama. This report is not from a random group of historians that got together and objectively decided that the 2nd Amendment does not support the individual right to keep and bear arms, but rather anti-gunners getting together with an agenda.
The fact that the English Bill of Rights allowed for goverment regulation of firearms does not limit the American constitution from specifically forbading this. If the writers of the American Bill of Rights had wanted possible regulation, they would have said so. Instead, that used the blanket “shall not be infringed”.
From the aricle: “Nothing in this argument challenges the idea that eighteenth-century Americans had ready access to firearms, or that they valued the concept of a well-armed citizenry. Individuals were legally free to purchase and keep weapons as they could other property; but like other forms of property, the keeping of firearms was subject to extensive legal regulation.”
What regulation? That slaves couldn’t own guns? That is all I ever heard of.
“They rejected language that would have modified that authority, including a qualifying provision, proposed by the House of Representatives, defining the militia as “composed of the body of the people.” Acceptance of that definition would impair congressional authority to determine how extensive membership in the militia should be.”
While militia membership was an important reason to keep and bear arms, the lack of it does not restrict the right to keep and bear arms. The militia phrase of the 2nd Amendment does not limit the “shall not be infringed” phrase. The milita phrase is a declaration of intent, but is no restrictive in anyway.
Fore more info: [url]http://www.guncite.com/gc2ndpur.html[/url]
IBrp
...ok, now I can go read the article...
I made a few typos in my post above (I haven’t done much posting here—anyone know how to edit your post)
First link: http://volokh.com/posts/1173746455.shtml
Second link: http://www.guncite.com/gc2ndpur.html
Last sentence should read: The militia phrase is a declaration of general intent, but is not restrictive in any way.
The second qualification was a reference to the Game Law of 1671, which allowed lords of manors to appoint gamekeepers to “take and seize all such guns” used by “divers disorderly persons” to hunt and trap “game intended to be preserved” for the higher classes of English society. 6 English Historical Documents 466-467 (Andrew Browning, ed., 1988).
I wonder how the political elite of WA DC and other major cities feel about the idea that only people of wealth or social status deserve to be armed. I do think that this the the heart of the gun control debate. The political elite don't trust law-abiding citizens to bear arms, only their cronies. They remember the lessons of the French Revolution only too well.
LOL!
I guess Noah didn't get the same notification as the articles authors...
It's nice the Brits started moving toward indiviual rights in 1689, but 'the right to keep and bear arms shall not be infringed' seems simplistically clear, no matter how hard the leftists in this administration attempt to muddy up the meaning.
Works for me...
Mark my words.
Past due time for their unConstitutional expansions of legislative power to be repealed en banc.
However, if the USSC noted that there is protection for the citizens under the Second Amendment, would it or would it not be a change in opinion?
Buy guns! The more we buy, the less likely they will try to come and get them. But if they do, the less likely they’ll be successful at it.
The SCOTUS splits in their opinion that the law is unconstitutional based on the 'shall not be infringed' portion, while the opposition bases it's view on the 'security of a free state' portion.
Now, if the pro side(Shall not be infringed) prevails, every law subject to the control of firearms in this country comes into question.
The captured bureaucracy of Washington would come apart at the seams.
If the Anti side(security of a free state) prevails, a whole host of new laws will be passed with even more stringent controls and soon a complete elimination of the basic right.
Now this decision will be determined by Kennedy, most likely, and the justices will not agree on an all or nothing decision either way. By narrowly focusing on the DC law and leaving the rest of the country in the same situation pertaining to GCA34, GCA68, etc, is what will happen. Which is what I am guessing will happen as I said in my earlier post.
Thoughts?
Miller was narrowed to the provisions of a sawed-off shotgun/militia argument and opened the door to regulation of machine guns, silencers, et al, wholly to control gangster activity when there was not enough law-enforcement to do the job.
Almost a certainty.
Otherwise, either way, things would get interesting around here real fast.
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