To Keep and Bear Arms: The Origins of an Anglo-American Right.

• Author: Rabkin, Jeremy

By Joyce L. Malcolm Harvard University Press 1994. Pp. 246.

A well regulated Militia, being necessary to the security of a free State, the right of the people to k&p and bear Arms shall not be infringed.

-- U.S. Const. amend. II

That the Subjects which are Protestants may have Armes for their defence Suitable to their Condition and as allowed by Law.

-- Section 7, English Bill of Rights, 1689 (1 W.&M., 2d Sess., c.2)

Joyce Malcolm's careful historical study attempts to shed light on the original understanding of the Second Amendment by presenting the full background of its forerunner, the arms provision in the English Bill of Rights.(1) It is a very timely undertaking. The Second Amendment itself has only in very recent years begun to receive serious scholarly attention. The implications of the English background to the Second Amendment have hardly been studied.

Legal scholarship on the Bill of Rights has, in general, had little to say about the Second Amendment. Some scholars have asserted that it is simply "anachronistic,"(2) akin to the Third Amendment guarantee against the quartering of troops in private homes.

On this view, the amendment reflects the preoccupations of colonial Americans, particularly their fear of a "standing army"--associated with a distant, unaccountable and oppressive royal authority. The text of the Second Amendment seems to reinforce this notion by linking the 'right to keep and bear arms" with the necessity of "a well-regulated militia."(3) At the time the Bill of Rights was adopted, anti-federalists may have thought it necessary to guarantee such separate military capabilities within the states as a check on potential abuses by the new federal government (and its constitutional power to maintain a national standing army). But that was long ago.

According to the current prevailing view, this guarantee to the states is, technically, still satisfied by the maintenance of the National Guard, whose units are organized state by state. The Supreme Court noted as much in its most recent major decision on the Second Amendment.(4) This decision, however, was shortly before World War II--the last period when the United States was still content with a merely skeletal national military force. In the decades since then, America has become accustomed to the maintenance of a vast national defense establishment. Colonial cautions about "standing armies" have come to seem as quaint as the muskets of the Minutemen at Lexington.

The Second Amendment, by this reasoning, has no relevance to contemporary debates about gun control because it was never about the rights of individual citizens.(5) At best, it is a monument to eighteenth century ideals about citizen soldiering which are sadly but definitively obsolete in a world of cruise missiles and jet fighters. At worst, it is a relic of an era where "states' rights" was literally a fighting cause--an era definitively and happily brought to a close by the surrender at Appomattox. To consider a different view of the Second Amendment would simply be, as the title of a famous article in the Yale Law Journal put it, "embarrassing."(6)

But even the most cursory investigation of the prevailing interpretation, if pursued with any honesty, unavoidably runs into "embarrassing" facts, as some insistent dissidents from the prevailing "collective right" view have begun to point out. For example, the actual text of the amendment is hard to reconcile with the notion that it has no relevance to individual rights--unless one is prepared to say the same thing about the guarantee against unreasonable searches and seizures in the Fourth Amendment, which is also prefaced with an appeal to "the right of the people."(7) Perhaps more importantly, it is clear that the Second Amendment was not simply a byproduct of debates over the new Federal Constitution. The language of the amendment echoes provisions in state constitutions from the 1770s. And both the language and the context of the Second Amendment bear obvious analogies to the English Bill of Rights of 1689, the evident source for several other provisions in the Federal Constitution.(8) Yet "states" rights' was of no relevance to the Parliament that reasserted the 'ancient and indubitable rights" of Englishmen (as the concluding, summary section of the English Bill of Rights describes them). The English Bill of Rights does not even make reference to county militia.

Some scholars have nonetheless dismissed the relevance of the parallel guarantee in the English Bill of Rights by invoking the same considerations deployed against the Second Amendment. The English guarantee, it is said, was also inspired by fear of standing armies and the power they might afford to oppressive kings. It is also said that the English guarantee was inspired by a concern to maintain an ultimate checking power, diffused among the people in their local militias. Hence the English guarantee is equally irrelevant to modern concerns.(9)

It did not require any great ingenuity or impressive research to launch this argument against the modem relevance of remote English precedent (which may be one reason why modem polemicists have not bothered to deploy either much ingenuity or much research on this point). It did not even require any particular animus against fire-arms or handguns, nor any partisan zeal, to withdraw the Second Amendment from the eager clutches of contemporary gun enthusiasts.

The argument was already stated in confident terms by that most self-confident of early Victorians, the historian Thomas Macaulay. An armed citizenry had been of great historic importance, he explained in the opening chapter of his History of England, in constraining the power of medieval kings and securing the historic liberties of Englishmen. But this historic truth could hardly have much relevance amidst the modem conditions of the nineteenth century:

The people have long unlearned the use of arms. The art of war has

been carried to a perfection unknown to former ages; and the knowledge

of that art is confined to a particular class. . . . In the meantime, the

effect of the constant progress of wealth has been to make insurrection

far more terrible to thinking men than mal-administration. . . . It is no

exaggeration to say that a civil war of a week on English ground would

now produce disasters which would be felt from the Hoangho to the

Missouri and of which the traces would be discernible at the distance of

a century. In such a state of society resistance must be regarded as a

cure more desperate than almost any malady which can afflict the

state. . . . As we cannot, without the risk of evils from which the imagination

recoils, employ physical force as a check on misgovernment, it is

evidently our wisdom to keep all the constitutional checks on misgovernment

in the highest state of efficiency . . . .(10)

The complacent mid-victorian "imagination" might 'recoil" before the thought of actual warfare in a modem, industrializing economy--the passage having been written before the American Civil War. Would Macaulay have been more shocked by the systematic horrors of twentieth century warfare, or by the completeness with which devastated nations recovered from them in less than one generation? Perhaps he would have been most of all shocked by the surge of crime and violence in nations which, by Victorian standards, are almost unimaginably wealthy and technologically advanced. No matter. In relatively recent times, the same Victorian outlook could be voiced with almost the same tone of confidence in an article dismissing the contemporary significance of the Second Amendment:

As the policing of society becomes more efficient, the need for armed

self-defense becomes more irrelevant; and as the society itself becomes

more complex, the military power in the hands of the government becomes

more powerful and the government itself more responsive, the

right to bear arms becomes more futile, meaningless and dangerous.(11)

Sometimes it requires a good historian to break the delusion that history--or the mere passage of time--is an invincible, protective moat, shielding later eras from the preoccupations of the past. At any rate,joyce Malcolm's new study of the English antecedents of the Second Amendment turns out to be a far more timely and intriguing work than one would have expected, given the conventional treatments of this subject.

Malcolm is a professional historian, and this is a careful history, as much a work of social and political as of legal history. Though she is plainly aware that her subject has some bearing on an emerging debate concerning the Second Amendment, she does not overemphasize the implications of her findings for constitutional constructions in contemporary America. The work is not, in other words, an exercise in topping arguments about "original intent" with learned demonstrations...