Geezah
01-07-2005, 11:42 AM
I wasn't sure if this should go in the politics or history section, but here you go, interesting read.
As the Supreme Court has recognized, "The historical necessities and events of the English constitutional experience . . . were familiar to" the Framers and should "inform our understanding of the purpose and meaning of constitutional provisions." (152) This rule is particularly applicable to provisions such as the Second Amendment, because "[t]he law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors." (153)
The right to arms that colonial Americans inherited from England had been set out first in the English Declaration of Rights of 1689, and then had been expounded by William Blackstone in his authoritative Commentaries on the Laws of England in the decade before the American Revolution. Both the Declaration and Blackstone made clear that the English right was a personal, individual one, not a "right" belonging to any government or restricted to persons in governmental service. The English right could not have been a federalism provision, because England lacked a federal structure; and neither the Declaration nor the law as expounded by Blackstone conditioned the right on a subject's service in any militia.
The Declaration of Rights was a product of the English Revolution of 1688-1689 (commonly known as the Glorious Revolution). In 1660, a special "Convention" Parliament had restored the English monarchy by crowning Charles II, (154) and two statutes enacted under him provided background for the Declaration's provisions on arms. First was the Militia Act, enacted by the royalist Parliament in 1662. (155) It authorized militia officers on their own warrants "to search for and seize all arms" of anyone they judged "dangerous to the peace of the kingdom," including through entering houses by force if necessary, the arms to be handed over to the militia and no judicial recourse being available. (156) Charles II repeatedly used this power, (157) aided not only by the regular militia but also by a volunteer army that he had organized unilaterally, (158) and by a select militia of about 15,000 that he formed in 1666. (159) The second statute was the Game Act of 1671, which, in the name of protecting wildlife, was "the first law in English history that took from the majority of Englishmen the privilege of having firearms." (160) It outlawed possession of guns (not just their use in hunting) by anyone not among the few rich qualified to hunt game. (161)
Concerns escalated after the accession in 1685 of Charles's brother, King James II. He was openly Roman Catholic, at a time of sharp political distrust between England's Protestants and Catholics. (162) He disarmed the Protestant militia of Ireland by seizing their arms and placing them in government magazines, while returning the arms of Ireland's Roman Catholics. In England, he continued to use the militia to disarm persons of questioned loyalties, including through strictly enforcing the Game Act, although he ultimately preferred to undermine the militia (whose loyalty he questioned), by restricting musters. He also accelerated and expanded his brother's policy of purging opponents, and Protestants in general, from the militia's and army's officer corps, and geometrically enlarged the standing army. (163)
James II fled soon after William of Orange landed in England in late 1688 at the invitation of leading Englishmen. A Convention Parliament in early 1689 adopted the Declaration of Rights, which William and his wife Mary (James's daughter) accepted before Parliament proclaimed them King and Queen, and which the ensuing regular Parliament enacted as the Bill of Rights. (164) A hundred years later, Alexander Hamilton in The Federalist celebrated "the revolution in 1688," when at last "English liberty was completely triumphant." (165)
The Declaration first listed twelve indictments of James II for having attempted to subvert "the laws and liberties of this kingdom," including:
E. By raising and keeping a standing army within this kingdom in time of peace, without consent of parliament, and quartering soldiers contrary to law.
F. By causing several good subjects, being protestants, to be disarmed, at the same time when papists were both armed and employed, contrary to law.
Then, in a roughly parallel list of thirteen "ancient rights and liberties," the Declaration stated:
6. That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.
7. That the Subjects which are Protestants may have Arms for their
Defence suitable to their Conditions and as allowed by Law.
This seventh article is most relevant here, and it set out a personal right. Neither this article nor the parallel sixth indictment ties possession of arms to service in the militia, which the Declaration never mentions. The sixth indictment instead indicates that being "armed" and being "employed" by the government are distinct - a distinction confirmed by the historical context, which, as we have explained, included subjects being disarmed by the militia. Furthermore, the right belonged to "Subjects," not to any government, and these subjects were allowed arms "for their Defence." (166)
Critics of the individual-right view contend that the two concluding clauses of the seventh article - "suitable to their Conditions, and as allowed by Law" - so restricted the right that it was a dead letter. Among the restrictions to which these clauses referred was the Game Act, which literally, albeit likely not in practice, barred most subjects from owning firearms. (167) As Lois G. Schwoerer has argued: "English-men did not secure to 'ordinary citizens' the right to possess weapons. . . . Drafted by upper-class Protestants who had their own interests at heart, Article VII was a gun control measure." (168) The Declaration, therefore, the argument goes, could have had little relevance to the right in the Second Amendment.
But this argument regarding the scope of the right does not speak to the question that we consider here, which is whether the English right was a right of individuals, a right of government, or a right specifically connected with military service to the government. On that question, the answer is clear. Schwoerer herself recognizes that many articles of the Declaration "guaranteed rights to the individual," including the right "to bear arms (under certain restrictions)." (169) Class- and religion-based restrictions did not destroy the personal nature of the right, whatever its scope. The precedent for Americans was an individual right.
In addition, that Article 7 of the Declaration (and the Bill) only recognized a right to possess arms "as allowed by Law" does not mean that it did not secure a true right. In England's constitutional tradition, particularly evident in the events surrounding the Declaration of Rights described above, formal English rights restricted only the Crown's prerogative, not the legislature's power, which was unrestricted. Thus, although Blackstone was able to explain many years after the English Revolution that a royal proclamation "for disarming any protestant subjects, will not bind," (170) the right to arms, like all other English rights, remained subject to revision or abolition by Parliament. (171) That characteristic of English rights hardly prevented Americans from borrowing and adapting them to a different constitutional structure.
Finally, whatever the actual ability of ordinary English subjects to have arms for their defense in 1689, by the Founding, a hundred years later, the right to do so extended to most of the country. As Judge Kleinfeld of the Ninth Circuit recently observed, "The historical context of the Second Amendment is a long struggle by the English citizenry to enable common people to possess firearms." (172) In new game laws, particularly that of 1706, Parliament deleted guns from the list of implements that those not qualified to hunt game were prohibited from owning. (173) The courts determined that Parliament had made this deletion "purposely." (174) Thus, notwithstanding the list's catch-all prohibition of "any other engines," they interpreted the deletion - together with the existence of "divers . . . lawful purposes" for which one might keep a gun, such as "for the defence of his house and family" - as protecting the right of individuals to keep guns even if they were not qualified to hunt game, so long as they did not hunt with them. (175) This interpretation of the 1706 game act was considered "settled and determined" by 1744, and in 1752 the Chief Justice of the King's Bench reaffirmed that it was "not to be imagined" that Parliament in that act had intended "to disarm all the people of England." (176) By 1780, London's Recorder - the city's legal adviser and the primary judge of its criminal court - in an opinion supporting the legality of the city's private armed associations formed for self-defense against riots, could announce as "most clear and undeniable" the "right of his majesty's Protestant subjects, to have arms for their own defence, and to use them for lawful purposes," adding that "this right, which every Protestant most unquestionably possesses individually" also "may, and in many cases must, be exercised collectively," subject to certain restrictions. (177) Similarly, an English commentator in the early 1790's wrote that "every one is at liberty to keep or carry a gun, if he does not use it for the destruction of game." (178)
Blackstone's Commentaries, first published in 1765-1769, were for the colonists and the Founding Generation the leading exposition of England's laws and constitution. In them, he confirmed that the English right to arms was an individual one and explained that it had grounds broader and deeper than the right that had been declared in the Revolution of 1688-1689.
In the first chapter of the first book, Blackstone detailed the "absolute rights of individuals," (179) that is, "such as appertain and belong to particular men, merely as individuals or single persons" and which "every man is entitled to enjoy, whether out of society or in it." (180) It was the purpose of law "to maintain and regulate" these rights in society, but "wanton and causeless restraint" was "a degree of tyranny." (181) He delineated three "principal or primary . . . rights of the people of England": "the right of personal security, the right of personal liberty, and the right of private property." (182)
But Blackstone recognized that declaring these three primary rights would be "in vain" and a "dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment." He therefore identified five "auxiliary subordinate rights of the subject" - "outworks or barriers to protect and maintain" the principal rights. (183) The first two were maintaining the constitution of Parliament and clear limits on the King's prerogative. Because these were more properly issues of governmental structure, he postponed their discussion to later chapters. (184) The other three, however, were plainly individual rights: (a) the "right of every Englishman . . . of applying to the courts of justice for redress of injuries"; (b) the "right, appertaining to every individual . . . of petitioning the king, or either house of parliament, for the redress of grievances," so long as no "riot or tumult" resulted; and (c) the "right of the subject . . . of having arms for their defence suitable to their condition and degree, and such as are allowed by law." He noted that the latter two rights both had been recognized in the 1689 Bill of Rights. (185)
Blackstone explained the subject's right of having arms as "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." (186) By tying the right to the natural - and thus individual and pre-political - right of self-defense, he recognized a deeper foundation than its declaration and enactment in 1689 and confirmed that the right existed independently of any bearing of arms in service to the militia, a subject that he did not mention in connection with the right. (187)
He returned to the right in concluding the first chapter. Again grouping together the last three auxiliary rights (suing, petitioning, and having arms), he explained that all were means for "the subjects of England" to "vindicate" the three primary rights "when actually violated or attacked." Thus, subjects were "entitled . . . to the right of having and using arms for self-preservation and defence." (188) By his repeated reference to "self-preservation" and his description of the right as including both "having and using" arms, Blackstone reiterated that the right had a personal aspect and was linked to self-defense - to the right to use one's "limbs . . . to protect himself from external injuries," which was part of the individual right of personal security. (189)
Finally, Blackstone's view of the right as belonging to individuals re-appears in his repeated disparagement of game laws as a pretext to undermine commoners' ability to use or have arms. He traced them to "slavery" imposed after the fall of the Roman Empire by invading generals, who sought to "keep the rustici or natives . . . in as low a condition as possible, and especially to prohibit them the use of arms." Thus, "we find, in the feudal constitutions, one and the same law prohibiting the rustici in general from carrying arms, and also proscribing the use of nets, snares, or other engines for destroying the game." (190) He denounced those arising in England after the Norman Conquest of 1066 as a "tyranny to the commons," (191) and thought their real rationale was an aristocratic desire to "disarm[ ] the bulk of the people." (192) He briefly described England's existing criminal game laws as confused and having a "questionable" nature, their "rational footing" being elusive. (193) But he approved hunting restrictions against trespassing (194) and did not criticize several other restrictions on the use and carrying of arms, involving breaches of the peace. (195)
Thus, the right to arms that America inherited from England was a right of individuals, and had deep roots by the time of the Framing. It did not depend on service in the government's militia, nor was it a federalism-related "right" of any government. It therefore provides no warrant for a quasi-collective-right or collective-right view of the Second Amendment. And, absent any evidence that Americans wished to abridge this individual right or transform it substantially, a question that we consider next, the English precedent supports an individual-right view of that Amendment.
Link (http://www.usdoj.gov/olc/secondamendment2.htm#3a)
As the Supreme Court has recognized, "The historical necessities and events of the English constitutional experience . . . were familiar to" the Framers and should "inform our understanding of the purpose and meaning of constitutional provisions." (152) This rule is particularly applicable to provisions such as the Second Amendment, because "[t]he law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors." (153)
The right to arms that colonial Americans inherited from England had been set out first in the English Declaration of Rights of 1689, and then had been expounded by William Blackstone in his authoritative Commentaries on the Laws of England in the decade before the American Revolution. Both the Declaration and Blackstone made clear that the English right was a personal, individual one, not a "right" belonging to any government or restricted to persons in governmental service. The English right could not have been a federalism provision, because England lacked a federal structure; and neither the Declaration nor the law as expounded by Blackstone conditioned the right on a subject's service in any militia.
The Declaration of Rights was a product of the English Revolution of 1688-1689 (commonly known as the Glorious Revolution). In 1660, a special "Convention" Parliament had restored the English monarchy by crowning Charles II, (154) and two statutes enacted under him provided background for the Declaration's provisions on arms. First was the Militia Act, enacted by the royalist Parliament in 1662. (155) It authorized militia officers on their own warrants "to search for and seize all arms" of anyone they judged "dangerous to the peace of the kingdom," including through entering houses by force if necessary, the arms to be handed over to the militia and no judicial recourse being available. (156) Charles II repeatedly used this power, (157) aided not only by the regular militia but also by a volunteer army that he had organized unilaterally, (158) and by a select militia of about 15,000 that he formed in 1666. (159) The second statute was the Game Act of 1671, which, in the name of protecting wildlife, was "the first law in English history that took from the majority of Englishmen the privilege of having firearms." (160) It outlawed possession of guns (not just their use in hunting) by anyone not among the few rich qualified to hunt game. (161)
Concerns escalated after the accession in 1685 of Charles's brother, King James II. He was openly Roman Catholic, at a time of sharp political distrust between England's Protestants and Catholics. (162) He disarmed the Protestant militia of Ireland by seizing their arms and placing them in government magazines, while returning the arms of Ireland's Roman Catholics. In England, he continued to use the militia to disarm persons of questioned loyalties, including through strictly enforcing the Game Act, although he ultimately preferred to undermine the militia (whose loyalty he questioned), by restricting musters. He also accelerated and expanded his brother's policy of purging opponents, and Protestants in general, from the militia's and army's officer corps, and geometrically enlarged the standing army. (163)
James II fled soon after William of Orange landed in England in late 1688 at the invitation of leading Englishmen. A Convention Parliament in early 1689 adopted the Declaration of Rights, which William and his wife Mary (James's daughter) accepted before Parliament proclaimed them King and Queen, and which the ensuing regular Parliament enacted as the Bill of Rights. (164) A hundred years later, Alexander Hamilton in The Federalist celebrated "the revolution in 1688," when at last "English liberty was completely triumphant." (165)
The Declaration first listed twelve indictments of James II for having attempted to subvert "the laws and liberties of this kingdom," including:
E. By raising and keeping a standing army within this kingdom in time of peace, without consent of parliament, and quartering soldiers contrary to law.
F. By causing several good subjects, being protestants, to be disarmed, at the same time when papists were both armed and employed, contrary to law.
Then, in a roughly parallel list of thirteen "ancient rights and liberties," the Declaration stated:
6. That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.
7. That the Subjects which are Protestants may have Arms for their
Defence suitable to their Conditions and as allowed by Law.
This seventh article is most relevant here, and it set out a personal right. Neither this article nor the parallel sixth indictment ties possession of arms to service in the militia, which the Declaration never mentions. The sixth indictment instead indicates that being "armed" and being "employed" by the government are distinct - a distinction confirmed by the historical context, which, as we have explained, included subjects being disarmed by the militia. Furthermore, the right belonged to "Subjects," not to any government, and these subjects were allowed arms "for their Defence." (166)
Critics of the individual-right view contend that the two concluding clauses of the seventh article - "suitable to their Conditions, and as allowed by Law" - so restricted the right that it was a dead letter. Among the restrictions to which these clauses referred was the Game Act, which literally, albeit likely not in practice, barred most subjects from owning firearms. (167) As Lois G. Schwoerer has argued: "English-men did not secure to 'ordinary citizens' the right to possess weapons. . . . Drafted by upper-class Protestants who had their own interests at heart, Article VII was a gun control measure." (168) The Declaration, therefore, the argument goes, could have had little relevance to the right in the Second Amendment.
But this argument regarding the scope of the right does not speak to the question that we consider here, which is whether the English right was a right of individuals, a right of government, or a right specifically connected with military service to the government. On that question, the answer is clear. Schwoerer herself recognizes that many articles of the Declaration "guaranteed rights to the individual," including the right "to bear arms (under certain restrictions)." (169) Class- and religion-based restrictions did not destroy the personal nature of the right, whatever its scope. The precedent for Americans was an individual right.
In addition, that Article 7 of the Declaration (and the Bill) only recognized a right to possess arms "as allowed by Law" does not mean that it did not secure a true right. In England's constitutional tradition, particularly evident in the events surrounding the Declaration of Rights described above, formal English rights restricted only the Crown's prerogative, not the legislature's power, which was unrestricted. Thus, although Blackstone was able to explain many years after the English Revolution that a royal proclamation "for disarming any protestant subjects, will not bind," (170) the right to arms, like all other English rights, remained subject to revision or abolition by Parliament. (171) That characteristic of English rights hardly prevented Americans from borrowing and adapting them to a different constitutional structure.
Finally, whatever the actual ability of ordinary English subjects to have arms for their defense in 1689, by the Founding, a hundred years later, the right to do so extended to most of the country. As Judge Kleinfeld of the Ninth Circuit recently observed, "The historical context of the Second Amendment is a long struggle by the English citizenry to enable common people to possess firearms." (172) In new game laws, particularly that of 1706, Parliament deleted guns from the list of implements that those not qualified to hunt game were prohibited from owning. (173) The courts determined that Parliament had made this deletion "purposely." (174) Thus, notwithstanding the list's catch-all prohibition of "any other engines," they interpreted the deletion - together with the existence of "divers . . . lawful purposes" for which one might keep a gun, such as "for the defence of his house and family" - as protecting the right of individuals to keep guns even if they were not qualified to hunt game, so long as they did not hunt with them. (175) This interpretation of the 1706 game act was considered "settled and determined" by 1744, and in 1752 the Chief Justice of the King's Bench reaffirmed that it was "not to be imagined" that Parliament in that act had intended "to disarm all the people of England." (176) By 1780, London's Recorder - the city's legal adviser and the primary judge of its criminal court - in an opinion supporting the legality of the city's private armed associations formed for self-defense against riots, could announce as "most clear and undeniable" the "right of his majesty's Protestant subjects, to have arms for their own defence, and to use them for lawful purposes," adding that "this right, which every Protestant most unquestionably possesses individually" also "may, and in many cases must, be exercised collectively," subject to certain restrictions. (177) Similarly, an English commentator in the early 1790's wrote that "every one is at liberty to keep or carry a gun, if he does not use it for the destruction of game." (178)
Blackstone's Commentaries, first published in 1765-1769, were for the colonists and the Founding Generation the leading exposition of England's laws and constitution. In them, he confirmed that the English right to arms was an individual one and explained that it had grounds broader and deeper than the right that had been declared in the Revolution of 1688-1689.
In the first chapter of the first book, Blackstone detailed the "absolute rights of individuals," (179) that is, "such as appertain and belong to particular men, merely as individuals or single persons" and which "every man is entitled to enjoy, whether out of society or in it." (180) It was the purpose of law "to maintain and regulate" these rights in society, but "wanton and causeless restraint" was "a degree of tyranny." (181) He delineated three "principal or primary . . . rights of the people of England": "the right of personal security, the right of personal liberty, and the right of private property." (182)
But Blackstone recognized that declaring these three primary rights would be "in vain" and a "dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment." He therefore identified five "auxiliary subordinate rights of the subject" - "outworks or barriers to protect and maintain" the principal rights. (183) The first two were maintaining the constitution of Parliament and clear limits on the King's prerogative. Because these were more properly issues of governmental structure, he postponed their discussion to later chapters. (184) The other three, however, were plainly individual rights: (a) the "right of every Englishman . . . of applying to the courts of justice for redress of injuries"; (b) the "right, appertaining to every individual . . . of petitioning the king, or either house of parliament, for the redress of grievances," so long as no "riot or tumult" resulted; and (c) the "right of the subject . . . of having arms for their defence suitable to their condition and degree, and such as are allowed by law." He noted that the latter two rights both had been recognized in the 1689 Bill of Rights. (185)
Blackstone explained the subject's right of having arms as "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." (186) By tying the right to the natural - and thus individual and pre-political - right of self-defense, he recognized a deeper foundation than its declaration and enactment in 1689 and confirmed that the right existed independently of any bearing of arms in service to the militia, a subject that he did not mention in connection with the right. (187)
He returned to the right in concluding the first chapter. Again grouping together the last three auxiliary rights (suing, petitioning, and having arms), he explained that all were means for "the subjects of England" to "vindicate" the three primary rights "when actually violated or attacked." Thus, subjects were "entitled . . . to the right of having and using arms for self-preservation and defence." (188) By his repeated reference to "self-preservation" and his description of the right as including both "having and using" arms, Blackstone reiterated that the right had a personal aspect and was linked to self-defense - to the right to use one's "limbs . . . to protect himself from external injuries," which was part of the individual right of personal security. (189)
Finally, Blackstone's view of the right as belonging to individuals re-appears in his repeated disparagement of game laws as a pretext to undermine commoners' ability to use or have arms. He traced them to "slavery" imposed after the fall of the Roman Empire by invading generals, who sought to "keep the rustici or natives . . . in as low a condition as possible, and especially to prohibit them the use of arms." Thus, "we find, in the feudal constitutions, one and the same law prohibiting the rustici in general from carrying arms, and also proscribing the use of nets, snares, or other engines for destroying the game." (190) He denounced those arising in England after the Norman Conquest of 1066 as a "tyranny to the commons," (191) and thought their real rationale was an aristocratic desire to "disarm[ ] the bulk of the people." (192) He briefly described England's existing criminal game laws as confused and having a "questionable" nature, their "rational footing" being elusive. (193) But he approved hunting restrictions against trespassing (194) and did not criticize several other restrictions on the use and carrying of arms, involving breaches of the peace. (195)
Thus, the right to arms that America inherited from England was a right of individuals, and had deep roots by the time of the Framing. It did not depend on service in the government's militia, nor was it a federalism-related "right" of any government. It therefore provides no warrant for a quasi-collective-right or collective-right view of the Second Amendment. And, absent any evidence that Americans wished to abridge this individual right or transform it substantially, a question that we consider next, the English precedent supports an individual-right view of that Amendment.
Link (http://www.usdoj.gov/olc/secondamendment2.htm#3a)