The Right of the People to Keep and Bear Arms: The Common Law Tradition
By JOYCE LEE MALCOLM*
Introduction**
Every generation suffers to some degree from historic amnesia. However, when the history
of a major political tradition, along with the assumptions and passions that forged it, are forgotten, it becomes extraordinarily difficult to understand or evaluate its legacy. This is particularly unfortunate when that legacy has been written into the enduring fabric of government. The Second Amendment to the United States Constitution is such a relic, a fossil of a lost tradition. Even a century ago its purpose would have been clearly appreciated. To nineteenth century exponents of limited government, the checks and balances that preserved individual liberty were ultimately guaranteed by the right of the people to be armed. The preeminent Whig historian, Thomas Macaulay, labelled this "the security without which every other is insufficient,"1 and a century earlier
the great jurist, William Blackstone, regarded private arms as the means by which a people might vindicate their other rights if these were suppressed.2
Earlier generations of political philosophers clearly had less confidence in written constitutions, no matter how wisely drafted. J.L. De Lolme, an eighteenth century author much read at the time of the American Revolution 3 pointed out
pg.286)
"But all those privileges of the People, considered in themselves, are but feeble defences
against the real strength of those who govern. All those provisions, all those reciprocal
Rights, necessarily suppose that things remain in their legal and settled course: what would conversation with the Parliament, or attempt to force it implicitly to submit to his will?—It would be resistance ... the question has been decided in favour of this doctrine by the Laws of England, and that resistance is looked upon by them as the ultimate and lawful resource against the violences of Power."4
This belief in the virtues of an armed citizenry had a profound influence upon the
development of the English, and in consequence the American, system of government. However, the many years in which both the British and American governments have remained "in their legal and settled course
," have helped bring us to the point where the history of the individual's right to keep and bear arms is now obscure. British historians, no longer interested in the issue, have tended to ignore it, while American legal and constitutional scholars, ill-equipped to investigate the English origins of this troublesome liberty, have made a few cursory and imperfect attempts to research the subject.5
As a result, Englishmen are uncertain of the circumstances surrounding the
establishment of a right to bear arms and the Second Amendment to the Constitution remains this country's most hotly debated but least understood liberty.
In a report on the legal basis for firearms controls, a committee of the American Bar
Association observed:
There is probably less agreement, more misinformation, and less understanding of the right of citizens to keep and bear arms than on any other current controversial constitutional issue. The crux of the controversy is the construction of the Second Amendment to the Constitution, which reads: "A well-regulated militia, being (pg.287) necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed."6
Few would disagree that the crux of this controversy is the construction of the Second Amendment, but, as those writing on the subject have demonstrated, that single sentence is capable of an extraordinary number of interpretations.7
The main source of confusion has been the meaning and purpose of the initial clause. Was it a qualifying or an amplifying clause? That is, was the right to arms guaranteed only to members of "a well-regulated militia" or was the militia merely the most pressing reason for maintenance of an armed community? The meaning of "militia" itself is by no
means clear. It has been argued that only a small, highly trained citizen army was intended,8 and, alternatively, that all able-bodied men constituted the militia.9
Finally, emphasis on the militia has been proffered as evidence that the right to arms was only a "collective right" to defend the state, not an individual right to defend oneself.10 Our pressing need to understand the Second Amendment has served to define areas of disagreement but has brought us no closer to a consensus on its original meaning.
The fault lies not with the legal, but with the scholarly, community. For if the crux of the
controversy is the construction of the Second Amendment, the key to that construction is the English tradition the colonists inherited, and the English Bill of Rights from which much of the American Bill of Rights was drawn. Experts in English constitutional and legal history have neglected this subject, however, with the result that no full-scale study of the evolution of the right to keep and bear arms has yet been published. Consequently, there is doubt about such elementary facts as the legality and availability of arms in seventeenth and eighteenth century England, and uncertainty about whether the English right to have arms extended to the entire Protestant population or only to the aristocracy. Experts in American constitutional theory have nevertheless endeavored to define the common law tradition behind the Second Amendment without the benefit of research into these basic
questions. These experts' findings are contradictory, often involve serious mistakes of fact, and muddle, rather than clarify, matters. (pg.288) For example, in their report to the National Commission on the Causes and Prevention of Violence, George Newton and Franklin Zimring insist that any traditional right of Englishmen to own weapons was "more nominal than real,"11 while the authors of The Gun in America conclude that few Englishmen ever owned firearms because prior to the adoption of the English Bill of Rights in 1689, firearms were expensive and inefficient, and thereafter guns were not considered "suitable to the condition" of the average citizen.12 Neither set of authors provides more than cursory evidence.13 On the other hand, one British author found that until modern times his countrymen's right to keep arms was "unimpaired as it was then [in 1689]
deliberately settled"14 and a second noted that with only "minor exceptions" the Englishman's "right to keep arms seems not to have been questioned."15...
