03-04-2018, 03:31 AM
1791.
THE RIGHT OF SELF-PROTECTION
The second principal reason that the intent of the framers of the Second Amendment is misunderstood in some quarters today, I think, is the failure to appreciate how vitally important to them was the right to possess arms, not only for service in the militia, but for self-protection.
To understand how the duty and right of self-protection were viewed by the Founding Fathers ― as well as the general population ― of the American Colonies in the late eighteenth century, it may be helpful to take a look at some of the realities of life at that time.
"Most Americans were accustomed to having their individual rights protected from violation from the government because approximately two-thirds of the population of the United States lived in states with constitutional bills of rights. In most of the other States some individual rights were protected in the state constitutions…. An armed populace was guaranteed in one way or another in every bill of rights of the original states [of those seven states ― Virginia, Maryland, Delaware, New Hampshire, Pennsylvania, North Carolina, Massachusetts (and later Vermont, after it was recognized as a separate state in 1791) ― that chose to draft one]. These provisions were the early progenitors of the Second Amendment, since it was the state bills of rights which were cited when the necessity of adding a bill of rights limiting the federal government was discussed later during the controversy over ratification of the United States Constitution."
Second, whether for frontier engagements with hostiles, for hunting, or for duty in the militia, practically the entire adult male population was armed. We know that many of the Founding Fathers, including George Washington, Thomas Jefferson, and George Mason, were gun collectors. Many had served in armed combat during the Revolution and presumably had brought their weapons home upon the cessation of hostilities; a large number, of course, were hunters; and some were even marksmen. James Madison, for example, boasted that he could hit a small target at 100 yards...but he admitted that he was far from the best marksman.
Third, there were no police. just as in England at the time (which had no police force until 1829), America had no police during the colonial period (the first American police force was not organized until 1845). "Even then [in England and America] the police were forbidden arms, under the view that if these were needed they could call armed citizens to their aid." (Ironically, the only gun control in nineteenth century England was the policy of forbidding police to have arms while on duty.)
Fourth, Americans (and their English cousins) were keenly aware of what could befall an unarmed populace. The historical example probably most familiar to eighteenth-century Englishmen and Americans was the persecution that drove thousands of Huguenots to the shores of both countries.
"Among the numerous tribulations visited in the 1690s upon the [unarmed] Huguenots in order to compel them to convert [to Catholicism], the most atrocious – and effective ― were the dragonades, or billeting of dragoons on Huguenot families with encouragement to behave as viciously as they wished. Notoriously rough and undisciplined, the enlisted troops of the dragoons spread carnage, beating and robbing the householders, raping the women, smashing and wrecking and leaving filth…."
This Huguenot lesson was reinforced in the Colonies with the licentious and outrageous behavior of the military sent among them by the British during the decade of protest and turmoil that preceded the Revolution.
Papers throughout the Colonies began printing a regular series called the "Journal of Occurrences," which detailed outrages alleged to have been committed by British troops in Boston:
"Dec. 12, 1768. A Married Lady of this Town was the other Evening, when passing from one House to another, taken hold of by a Soldier; who other ways behaved to her with great rudeness…. Another Woman was pursued by a Soldier into a House near the North End, who dared to enter the same, and behave with great insolence…."
In fact, "throughout the eighteenth century, criminal offenses by English soldiers, sailors, and hired foreign mercenaries in the Colonies were a constant occurrence and a subject of constant antagonism between Americans and the English military, who refused to punish their men or to turn them over to local justice. As a result of these experiences, in the Anglo-American legal tradition, as the Founding Fathers understood it [even though there was no police force] the very idea of empowering government to place an armed force in constant watch over the populace was vehemently rejected as being a model of French Catholic despotism" .
Fifth, they had learned their law from the English common law, Particularly from the writings of one of their principal mentors, William Blackstone.
"[Blackstone] placed the right to arms among the ‘absolute rights of individuals at common law,’ those rights he saw as preserving to England its free government and to Englishmen their liberties. Yet, unquestionobly, what Blackstone was referring to was the individuals' rights to have and use arms for self-protection. He describes the right to bear arms as being ‘for self-preservation and defence,’ and self-defense as being ‘the primary law of nature [which cannot be taken away by the law of society] ― the natural right of resistance and self-preservation, when the sanctions, of society and laws are found insufficient to restrain the violence of oppression.’
"This background suggests why Blackstone saw political overtones in the right to arms, coupling his discussion of it to rights that are plainly political in nature. It helps to explain why in the Bill of Rights the right of arms [of the Second Amendment] is preceded by the rights of religion, expression, press and petition [of the First Amendment], then followed by the guarantee against quartering soldiers [of the Third Amendment], and then followed, in turn, by protection against unreasonable searches and seizures [of the Fourth Amendment]."
Consider how these first four amendments join together to form an umbrella of individual protection. "Not only are these rights phrased in substantially identical terms (the First, Second and Fourth Amendments all speak in terms of rights of 'the people'), but their roots [in the constitutional and common law of England], and the situations in which they were visualized as operating, are closely identified."
Thus we see that as a result of several powerful influences ― their Anglo-American philosophical heritage, their education in the English common law, and the impact of the realities of colonial life upon the daily conduct of their lives ― "[t]o the Founders and their intellectual progenitors, being prepared for self-defense was a moral imperative as well as a pragmatic necessity."
"In the tradition from which the Second Amendment derives it was not only the unquestioned right, but a crucial element in the moral character of every free man that he be armed and willing to defend his family and community against crime. This duty included both individual acts and joining with his fellows in hunting criminals down when the hue and cry went up, as well as the more formally organized posse comitatus [literally, the power or authority of the county] ― a body of persons summoned by the sheriff to assist in preserving the public peace.
And this leads, rather logically and naturally, I think, to the clear and unequivocal words of the Second Amendment. The Founding Fathers intended that the people possess a right to be armed for duty in the general militia, as well as a right to keep and bear arms for their self-protection. In other words, for their generation and all succeeding generations of free Americans, they intended that every man should be armed.
THE RIGHT OF SELF-PROTECTION
The second principal reason that the intent of the framers of the Second Amendment is misunderstood in some quarters today, I think, is the failure to appreciate how vitally important to them was the right to possess arms, not only for service in the militia, but for self-protection.
To understand how the duty and right of self-protection were viewed by the Founding Fathers ― as well as the general population ― of the American Colonies in the late eighteenth century, it may be helpful to take a look at some of the realities of life at that time.
"Most Americans were accustomed to having their individual rights protected from violation from the government because approximately two-thirds of the population of the United States lived in states with constitutional bills of rights. In most of the other States some individual rights were protected in the state constitutions…. An armed populace was guaranteed in one way or another in every bill of rights of the original states [of those seven states ― Virginia, Maryland, Delaware, New Hampshire, Pennsylvania, North Carolina, Massachusetts (and later Vermont, after it was recognized as a separate state in 1791) ― that chose to draft one]. These provisions were the early progenitors of the Second Amendment, since it was the state bills of rights which were cited when the necessity of adding a bill of rights limiting the federal government was discussed later during the controversy over ratification of the United States Constitution."
Second, whether for frontier engagements with hostiles, for hunting, or for duty in the militia, practically the entire adult male population was armed. We know that many of the Founding Fathers, including George Washington, Thomas Jefferson, and George Mason, were gun collectors. Many had served in armed combat during the Revolution and presumably had brought their weapons home upon the cessation of hostilities; a large number, of course, were hunters; and some were even marksmen. James Madison, for example, boasted that he could hit a small target at 100 yards...but he admitted that he was far from the best marksman.
Third, there were no police. just as in England at the time (which had no police force until 1829), America had no police during the colonial period (the first American police force was not organized until 1845). "Even then [in England and America] the police were forbidden arms, under the view that if these were needed they could call armed citizens to their aid." (Ironically, the only gun control in nineteenth century England was the policy of forbidding police to have arms while on duty.)
Fourth, Americans (and their English cousins) were keenly aware of what could befall an unarmed populace. The historical example probably most familiar to eighteenth-century Englishmen and Americans was the persecution that drove thousands of Huguenots to the shores of both countries.
"Among the numerous tribulations visited in the 1690s upon the [unarmed] Huguenots in order to compel them to convert [to Catholicism], the most atrocious – and effective ― were the dragonades, or billeting of dragoons on Huguenot families with encouragement to behave as viciously as they wished. Notoriously rough and undisciplined, the enlisted troops of the dragoons spread carnage, beating and robbing the householders, raping the women, smashing and wrecking and leaving filth…."
This Huguenot lesson was reinforced in the Colonies with the licentious and outrageous behavior of the military sent among them by the British during the decade of protest and turmoil that preceded the Revolution.
Papers throughout the Colonies began printing a regular series called the "Journal of Occurrences," which detailed outrages alleged to have been committed by British troops in Boston:
"Dec. 12, 1768. A Married Lady of this Town was the other Evening, when passing from one House to another, taken hold of by a Soldier; who other ways behaved to her with great rudeness…. Another Woman was pursued by a Soldier into a House near the North End, who dared to enter the same, and behave with great insolence…."
In fact, "throughout the eighteenth century, criminal offenses by English soldiers, sailors, and hired foreign mercenaries in the Colonies were a constant occurrence and a subject of constant antagonism between Americans and the English military, who refused to punish their men or to turn them over to local justice. As a result of these experiences, in the Anglo-American legal tradition, as the Founding Fathers understood it [even though there was no police force] the very idea of empowering government to place an armed force in constant watch over the populace was vehemently rejected as being a model of French Catholic despotism" .
Fifth, they had learned their law from the English common law, Particularly from the writings of one of their principal mentors, William Blackstone.
"[Blackstone] placed the right to arms among the ‘absolute rights of individuals at common law,’ those rights he saw as preserving to England its free government and to Englishmen their liberties. Yet, unquestionobly, what Blackstone was referring to was the individuals' rights to have and use arms for self-protection. He describes the right to bear arms as being ‘for self-preservation and defence,’ and self-defense as being ‘the primary law of nature [which cannot be taken away by the law of society] ― the natural right of resistance and self-preservation, when the sanctions, of society and laws are found insufficient to restrain the violence of oppression.’
"This background suggests why Blackstone saw political overtones in the right to arms, coupling his discussion of it to rights that are plainly political in nature. It helps to explain why in the Bill of Rights the right of arms [of the Second Amendment] is preceded by the rights of religion, expression, press and petition [of the First Amendment], then followed by the guarantee against quartering soldiers [of the Third Amendment], and then followed, in turn, by protection against unreasonable searches and seizures [of the Fourth Amendment]."
Consider how these first four amendments join together to form an umbrella of individual protection. "Not only are these rights phrased in substantially identical terms (the First, Second and Fourth Amendments all speak in terms of rights of 'the people'), but their roots [in the constitutional and common law of England], and the situations in which they were visualized as operating, are closely identified."
Thus we see that as a result of several powerful influences ― their Anglo-American philosophical heritage, their education in the English common law, and the impact of the realities of colonial life upon the daily conduct of their lives ― "[t]o the Founders and their intellectual progenitors, being prepared for self-defense was a moral imperative as well as a pragmatic necessity."
"In the tradition from which the Second Amendment derives it was not only the unquestioned right, but a crucial element in the moral character of every free man that he be armed and willing to defend his family and community against crime. This duty included both individual acts and joining with his fellows in hunting criminals down when the hue and cry went up, as well as the more formally organized posse comitatus [literally, the power or authority of the county] ― a body of persons summoned by the sheriff to assist in preserving the public peace.
And this leads, rather logically and naturally, I think, to the clear and unequivocal words of the Second Amendment. The Founding Fathers intended that the people possess a right to be armed for duty in the general militia, as well as a right to keep and bear arms for their self-protection. In other words, for their generation and all succeeding generations of free Americans, they intended that every man should be armed.