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

• Author: Cottrol, Robert J.

[I]n vain would these rights [personal security, personal liberty, and private property] be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.

The fifth and last auxiliary right of the subject ... is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute ... and is indeed 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.(1)

Joyce Lee Malcolm's timely study, To Keep and Bear Arms: The Origins of an Anglo-American Right,(2) brings the insights of a student of early modern English political history to the contemporary debate over the Second Amendment.(3) Through an examination of statutes and cases, of English constitutional thought, and of the political, social, and cultural background of English history and law from the seventeenth century to the twentieth, Malcolm does more than simply outline the history of the English right to arms. As her subtitle promises, Malcolm brings into sharp relef the origins of the right to arms not only in English ideological and constitutional thought, but in American constitutionalism as well.

Malcolm's study traces the transformation of the traditional duty of the English population to have arms for the common defense into the notion of a political right to arms to resist potential excesses of the Crown. She first focuses on the political turmoil that was seventeenth-century England, a unique century in modern English history. A Scottish family occupied the English throne.(4) A King, Charles I, was beheaded. A most un-English experiment, eleven years of republican rule, the Protectorate, was attempted. And by the end of the century, the English exacted a Declaration of Rights from their new rulers, William and Mary. That declaration included the right to arms. Then, Professor Malcolm takes her study beyond the seventeenth-century background that helped produce a formal recognition of the right to arms. She examines the subsequent history of the right to arms in England and how it became a virtual nullity in the twentieth century.

This Review examines Malcolm's study. Part I explores the modern American debate over the Second Amendment--the quality of which will be greatly improved by Malcolm's contribution of To Keep and Bear Arms. Part II examines Malcolm's treatment of seventeenth-century English constitutionalism and how the right to arms became part of English constitutional thinking. Part III traces the social and cultural developments that led to the ultimate evisceration of the right to arms in the United Kingdom in the twentieth century. Part IV concludes by discussing the significance of Professor Malcolm's history of the English right to arms for late-twentiethcentury Americans concerned both with guns and violence and with arms and rights.

1. AN AMERICAN DEBATE, AN ENGLISH PREFACE

   The debate over the Second Amendment is one of the more intriguing controversies in American constitutional discourse. Few issues excite greater passion. For better than a generation, the debate over the right to keep and bear arms has been a staple of editorial and op-ed writers in the popular press.(5) It is the subject of a vast polemical literature by partisans on both sides of the often acrimonious gun control debate. Respected legal scholars, in the pages of this law journal, have in recent years termed the Second Amendment "embarrassing"(6) and "terrifying."(7) Warren Burger has indicated his belief that the Amendment's inclusion in the Bill of Rights was a mistake, a startling assertion about a provision of the Bill of Rights by a former Chief Justice of the Supreme Court.(8)

   Some see the Amendment as a guarantee of political freedom, a hedge against a potentially tyrannical government.(9) Despite prevailing stereotypes, this position cuts across familiar ideological lines.(10) It has been embraced, to varying degrees, by the generally conservative National Rifle Association, by liberal constitutional scholar Sanford Levinson,(11) and by retired-Army-Colonel-turned-syndicated-columnist Harry Summers.(12) Others, including former Chief Justice Burger,(13) conservative former Supreme Court nominee Robert Bork,(14) and various gun control advocacy groups, see the Second Amendment as having been inappropriately used as a tool to combat needed public safety and anticrime measures.(15)

   Oddly enough, this often-rancorous exchange has long been neglected by those to whom we normally turn for constitutional interpretation: the legal academy and the courts, particularly the U.S. Supreme Court. Members of the legal academy, until relatively recently, have been reluctant to join the Second Amendment debate,(16) and the nature of the right to arms remains a historical controversy more faithfully attended to by partisans on different sides of the gun control debate than by professional historians.(17) The Second Amendment also continues to be an arena of jurisprudence from which the nation's highest Court has largely been absent. The nation's highest tribunal has seriously addressed the issue in only three cases,(18) and the most recent of these, United States v. Miller, is over fifty years old.

   This controversy occurs at the most fundamental level: It is a debate over the Amendment's basic meaning. Briefly stated, the modern debate over the Second Amendment is about the extent to which that constitutional provision was intended to limit the ability of government to prohibit or severely restrict private ownership of firearms. It is a debate shaped in part by high national crime rates--an average of 11,000 homicides occur annually in incidents involving firearms(19)--and in part by the presence of firearms in roughly half the households in the country.(20)

   This debate has produced two familiar interpretations of the Second Amendment. Advocates of stricter gun controls have tended to stress the Amendment's Militia Clause ("A well-regulated Militia, being necessary to the security of a free State"), arguing that the purpose of the Amendment was to maintain state militias against federal encroachment.(21) Advocates of this view, the so-called collective rights theory, argue that the Framers' sole concern was preventing the concentration of military power in the hands of the federal government.

   Opponents of stricter gun controls have tended to stress the Amendment's second clause ("the right of the people to keep and bear Arms, shall not be infringed") and note that the Framers intended a militia of the whole, or at least one consisting of the entire able-bodied white male population. They argue that this militia of the whole was expected to perform its duties with privately owned weapons. Advocates of this individual rights theory also argue that the Militia Clause should be read as an amplifying rather than a qualifying clause; that is, although maintaining a "well-regulated militia" was a major reason for including the Second Amendment in the Bill of Rights, it should not be viewed as the sole or limiting reason. Instead, other reasons, such as a right to individual self-defense, must be understood as within the Framers' contemplations.(22)

   Little in either the historical record or the language of the Amendment supports the collective rights theory, at least at its most simplistic level--i.e., that the Second Amendment simply was meant to reserve states the right to raise or maintain militia units.(23) The historical evidence overwhelmingly supports the view that the militia envisioned in the Second Amendment consisted of virtually all adult white men(24) equipped with their own arms.(25) A universally or even widely armed population was seen as supporting a well-regulated militia in at least two ways. First, it ensured arms for the individual militiaman: He brought his own. Second, it guaranteed widespread familiarity with arms amongst the population, enhancing the military effectiveness of the militia of the whole.

   The text of the Second Amendment also poses unment challenges for those who would claim that it was not meant to protect an individual right.(26) Several points should be noted. To begin with, the first clause, discussing the well-regulated militia, seems to be the dependent clause. According to this reading, a well-regulated militia depends on the right of the people to keep and bear arms. The language does not suppor the opposite reading, that the right of the people to keep and bear arms depends on the maintenance or preservation of a well-regulated militia. It should also be noted that the Amendment has two parts: (1) an observation, or perhaps a cautionary note ("A well-regulated Militia, being necessary to the security of a free State") and (2) a command or legal requirement ("the right of the people to keep and bear Arms, shall not be infringed"). The plain language of the first clause appears to impose no legal requirement or restriction on the federal government. Only the second clause indicates a right that the government cannot infringe.

   In addition, the second clause speaks of the "right of the people." We agree with Chief Justice Rehnquist's assertion in United States v. Verdugo-Urquidez(27) that "the people" referred to in the Second Amendment are the same as "the people" discussed in the First, Fourth, Nith, and Tenth Amendments. It is hardly credible to assume that the Framers' reference to "the people" indicated intent to protect the rights of private...