Part I: Where Did the Right to Bear Arms Originate?
Few articles or clauses in the Constitution have generated more debates over the last century than the 2nd Amendment. Out of all of the freedoms in the Bill of Rights, the 2nd Amendment has definitely been seen to be the most irrelevant, backward, and obnoxious to our current governmental officials. That is because largely it is. With regulatory agencies arbitrarily deciding whether or not certain firearms are ‘legal’ based on cosmetic features and a citizenry who would surrender their firearms to registration and confiscation when they are told to do so, the 2nd Amendment bears little more than a shadow of its former relevance in the 21st century. And yet in reality, the 2nd Amendment is even more important today than it has ever been in the past.
Contrary to the propaganda of the last half century, the founders were not crafting a law which would grant people the inalienable right to carry a handgun for self-defense. Nor were they ensuring the right of the people to go deer hunting with 30 round magazines and semi-automatic rifles for generations to come. Though both taking ones personal safety seriously and hunting are laudable and good things for a free people to do, the Constitution makes no mention of either of those activities. Even less so would the founders have believed that their government, any government which would come to be in America, would be so small minded and tyrannical as to restrict those basic activities. No, what the founders and framers were interested in was the preservation of liberty and as such, what they drafted and gave to the states to ratify had to do with matters of national importance.
The 2nd Amendment is the proverbial backbone of the entire constitutional structure and an example of properly diffused power stemming from the natural law. Without it, the entire system of rights and liberties cherished by the American people would only be worth as much as the parchment on which it is written. Those rights could be abrogated or taken away as easily as the wording on the pages of the Constitution could be changed or ignored by those holding political power to reflect the “evolving” standards of a modern society. And that is because, as Mao Zedong stated, “political power grows out of the barrel of a gun. Or as the former president of Brazil Jair Bolsonaro pointed out: “diplomacy alone is not enough. When the saliva runs out, you need gunpowder, otherwise it doesn’t work.”
Both Mao’s and Bolsonaro’s comments reflect the stark reality that people are only as free as they are capable of acting as they ought to without fear of physical retaliation. The founding fathers acknowledged this reality when they crafted both the Declaration and Constitution: power, like freedom, is not simply the power to speak, but the ability to act as one ought even to the extreme of revolution. The militia men at Lexington and Concord Massachusetts knew this reality viscerally in the spring of 1775. That is why simple New England merchants and farmers placed their lives on the line to defend the powder and shot which were being stored at Lexington, against the best trained and most determined troops in the world. They understood that words are only powerful so long as they are heard. Yet, if power grows out of the barrel of a gun, what good are words if those who are speaking cannot also defend them?
When the British government flagrantly ignored to the colonies petitions for the redress of grievances, they sent a message by firing the shot that was heard around the world. The Revolutionary War was triggered when the British came to seize the arms of the militia in order to subject them to the arbitrary rule of Parliament once again, leaving the colonies without a voice or any real freedom, validating the unfortunate truth that if you are not armed you have no voice. That lesson was imprinted deeply on the American psyche. So deeply in fact that the right to bear arms codified in all of the state constitutions in one way or another after the revolution and was expressly articulated in the Federal Constitution as being the best defense of “a free state.”
The wording of the 2nd Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
Each word in the amendment has a specific meaning as a legal term of art. And, as it turns out, each word as defined then still means the same thing today. The meaning of the 2nd Amendment has not changed one iota from the date it was first drafted to the present moment. Further, the verbiage employed by the drafters, and ratified by the states, has specific implications for the entire constitutional order, and perhaps even the future security of the republic.
What the framers were doing when drafting the 2nd Amendment was taking perhaps the most cherished and important of the ancient rights of Englishmen and making it the cornerstone of the newly united States political and societal freedom. Namely, they were removing the military power almost entirely from the hands of the central government and placing it in the hands of the people.
That the founding generation would have intentionally retained such a large responsibility in the people is not surprising. Remember, the revolution was not fought over “taxation without representation” alone. There were many catalysts leading up to the battles at Lexington and Concord. The most famous articulation of these causes can be found in the Declaration of Independence when it compiles the “long train of abuses and usurpations” which impelled the once loyal colonies to separate from the Crown. Among these abuses are stated the rendering of the “Military independent and superior to the Civil power . . . For Quartering large bodies of armed troops among us,” and for keeping “among us, in times of peace, Standing Armies without the consent of our legislatures.”
These were certainly not small injuries to the rights of freedom-loving Englishmen. The military responsibility had been the province of the broader male population since the time of the Heptarchy and Alfred the Great. More importantly, the military duty of all fighting-aged men in the realm was seen as one of the most important functions of a man’s status in the kingdom. In fact, the entire purpose of the feudal societal structure was to have a military hierarchy built into the strata of society and ready for mobilization at a moment’s notice.
William Blackstone, whose Commentaries on the Laws of England were considered to be the definitive collection of treatises on the English common law tradition by the founding generation, wrote: “Upon the Norman conquest the feudal law was introduced here in all its rigor, the whole of which was built on a military plan.”[1]
Blackstone’s observation is verified by what was known as the Assize of Arms. The Assize, implemented by King Henry II in 1181, just a little more than a century after the initial conquest of the island, required all men of the realm to keep and bear certain arms according to their rank in the feudal hierarchy. This is the first codified law that is known to explicitly place the burden of military service, and military armament into the hands of the people directly and not into the hands of a standing military.
Under the Assize of Arms: “Whosoever holds a knight’s fee shall have a coat of mail, a helmet, a shield, and a lance; and every knight as many . . . as he shall have knight’s fees in his domain. Every free man having in chattels (moveable property) and rent (lands) to the value of 15 marks, shall keep a coat of mail, a helmet and shield and lance. Every free layman who shall have in chattels or rent 10 marks, shall have a habergon (sleeveless armored coat), a chaplet (skullcap) of iron and a lance. Also all burgesses and the whole community of free men shall have a wambais (inexpensive leather body armor), a chaplet of iron, and a lance. Every one of these shall swear that he will have these arms before the Feast of St. Hilary . . . and no man having these arms shall sell, pledge, nor lend them, nor alienate them in any manner; nor shall the Lord take them from his vassal by forfeiture, gift, pledge, or any other manner.”[2]
Essentially, the Assize of Arms was requiring that all free men, those who were not bound to serfdom, were mandated to have offensive arms to prosecute war, and armor to ensure a level of safety in battle. The modern equivalent of this would be something like people who have an income of $300,000.00 a year would have the responsibility to provide a bipod-mounted belt fed squad support weapon, and those making less would be required to provide an M4, along with every man providing a certain amount of ammunition, body armor, helmets, etc. This analogy is not an exaggeration either.
Through a series of consequential laws and ordinances, the Kings of England actually updated the laws requiring all men to keep and bear arms to include progressively more and more modern weapons and armor. King Edward I expanded the requirements for the bearing of arms from every free man to every man in the realm, and even went so far as to appoint constables to ensure that everybody was armed. According to Blackstone: “In the meantime we are not to imagine that the kingdom was left wholly without defense, in case of domestic insurrections, or the prospect of foreign invasions. Besides those, who by their military tenures were bound to perform (1) forty days service in the field, the statute of Winchester obliged every man, according his estate and degree, to provide a determinate quantity of such arms as were then in use, in order to keep the peace: and constables were appointed (2) in all hundreds to see that such arms were provided.”[3] The laws requiring all men to be armed and ready for war as a state of societal self-preservation were, interestingly enough, only eroded when the political upheavals of the Reformation introduced an incentive to disarm dissident Catholics and subjugate them to the Protestant government.
All of the requirements for the bearing of arms by the general male population served one purpose: to ensure that no standing army was maintained in times of peace. As Blackstone begins his chapter on the military in his Commentaries, “In a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. In absolute monarchies this is necessary for the safety of the prince, and arises from the main principle of their constitution, which is that of governing by fear: but in free states the profession of a soldier, taken singularly and merely as a profession, is justly an object of jealousy. In these no man should take up arms, but with a view to defend his country and its laws: he puts not off the citizen when he enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier. The laws therefore and constitution of these kingdoms know no such state as that of a perpetual standing soldier, bred up to no other profession than that of war: and it was not till the reign of Henry VII, that the Kings of England had so much as a guard about their persons.”[4]
What Blackstone articulated in his treatises on the laws of England was put into practice in the colonial governments before the revolution. None of the colonies had standing armies or even standing militias but had the military defense their societies needed built into the social structures. Much as the original military defense of England was organized in from the beginning of that nation, the American colonists also had mandatory service in the militia for all able-bodied male citizens for the same reason that William Blackstone surmised: free people are people who are the military in times or necessity. Standing armies only serve to restrict liberty and by their very existence not only endanger freedom but take away perhaps freedom’s most vital element.
Part II will continue with the historical development of the 2nd Amendment and begin to look at the Constitutional significance and it’s implications for our own time.
[1] Blackstone, William. Commentaries on the Laws of England: Of the Military and Maritime States. Book 1.,Of the Rights of Persons. (Oxford, United Kingdom: Oxford University Press,2016), 263.
[2] Hardy, David T. Origins and Development of the Second Amendment. (Southport, CT: Publishers Blacksmith Corporation, 1986),14.
[3] Blackstone, 264.
[4] Ibid, 263.
In Defense of Man 
Great article!!
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