Daily Archives: January 20, 2012

The English origins and value of the USA’s Second Amendment

“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.” (American Constitution Second Amendment)

American liberals have a problem. They wish to remove the constitutional right to bear arms from the American people.  Their problem is the Second Amendment. To honestly achieve their aim they would have to amend the Constitution. But such amendments are difficult going on impossible.

To initiate amendments, either two thirds of both houses of Congress must vote for them or two thirds of the State legislatures must call for a convention for proposing amendments. That is just the proposal process. This is followed by acceptance by the individual States. In the former case, three quarters of the States must ratify the amendment individually: in the latter three quarters of the convention must vote for the amendment.

Those are stringent terms to meet in any political system, but particularly so in a state as vast and diverse as the USA and with such a strong tradition of regional government. Add to those structural difficulties the existence of widespread gun ownership and powerful lobbies such as the National Rifle Association and the mountain becomes practically  insurmountable by honest means. So what does the liberal do? What he always does when he wants to ban something which is permitted by the Constitution: he pretends that the Constitution does not mean what it manifestly says.

In the case of the Second Amendment the attack takes the form of pretending that the Amendment was merely meant to provide for a militia rather than affirming and protecting the right of people to arm themselves individually. Happily, there is plenty of ammunition with which to shoot down this claim: in the Constitution itself, in the historical circumstances in which the Constitution and Amendment were drafted, in the very logic of a militia.

The claim that the amendment is simply to safeguard the right of America’s military forces to keep and bear arms is self-evidently absurd. If true all the amendment would mean is that the federal government could not disarm the militia soldiers who represented the majority of its armed forces. It would be practically a redundant clause.

The fact that the Amendment states that the right is not merely to bear but to keep arms might be thought by most honest folk to be a pretty clear indication that the private
ownership of weapons was what the framers of the Amendment had in mind. Moreover, what would be the point of the Amendment if it was not to confer such a right to the
individual? Any other permission to keep and bear arms must of necessity be dependent upon permission from those with political power and authority. It would thus again be a futile and redundant clause. It is noteworthy that nowhere in the Constitution, amended or otherwise, is any instruction on the exercise of such state power given or hinted at.

When judging the intent of the framers of the Constitution and the Bill of Rights (which contains the Second Amendment) it is necessary to know the general social and intellectual backcloth against which they worked. They were heir to the English tradition of liberty and government by consent rather than pure tyranny. The Americans who rose against the England of King George 111 did so because they considered themselves part of the tradition of English liberty. In seeking independence, they were not repudiating that tradition but in their own minds returning to what they imagined was the true path of English liberty which had become corrupted in England. It is against this ancient English tradition that the Constitution and the Bill of Rights must be set.

What does the unamended Constitution of 1787 say about the protection of the newly formed United States? Section 8 of Article 1 grants to Congress the right:

To raise and support Armies, but no appropriation of Money for that Use shall be for a longer term than two years.

“To provide and maintain a Navy.

“To make Rules for the Government and Regulation of the land and naval Forces.

“To provide for calling forth the Militia to execute the laws of the Union, suppress Insurrections and repel Invasions.

“To provide for organising, arming and disciplining the Militia, and for governing such part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

The first point to note is that the Army and the militias are clearly distinguished as separate entities. The second is the time limit on the power to raise money for armies. This is highly significant. There was a very long tradition in England of professional standing armies being heartily mistrusted as the tool of despots. It was the attempt to
institute a standing army of thirty thousand men which was one of the main reasons why King James 11 was overthrown in 1688. Armies were raised for wars, but in peacetime militias were the order of the day. Indeed, until the first world war England never had a great standing army. (The English tradition is also echoed in the absence of any time restriction placed on the funding of a navy by the Founding Fathers. The English never feared a strong navy as such because it could not be used against them).

With this English mistrust of standing armies and reliance on militias went a tradition of not merely allowing weapons to be generally held, but of such a practice being  positively encouraged to ensure the defence of the country. Feudal military obligation was in fact built on the private provision not merely of men but of arms and equipment. In late medieval times statutes were enacted to encourage long bow practice. The Spanish Armada which attempted to invade England in 1588 was repulsed by a mixed English fleet of private and Royal ships.

Perhaps the strongest single circumstantial reason for dismissing the liberal’s interpretation of the Second Amendment are the well attested motives for those promoting
the Bill of Rights. Those who pushed for the first ten Amendments did so because they believed that the rights and liberties of the individual were not guarded explicitly
enough by the original Constitution. Thus ,if we are to believe the liberal, we must accept the truly fantastic explanation that in the case of the Second Amendment the
protection of individual liberty was utterly cast aside without reason, public acknowledgement or, most compellingly, any contemporary comment, adverse or otherwise.

There is also a question of simple practicality. When the Amendment was passed (December 1791), the infant federal government simply did not have the means to finance the arming of militias. Thus, they can only have envisaged private arms being put to the service of the state, a tradition which as previously mentioned had a long history in
both England and the Thirteen Colonies. Moreover, subsequent history bore this out, for the greater number of troops employed by the American Union in its wars against Britain and Mexico in the first half of the 19th century came from militias. In an age of minimal government, the Second Amendment underpinned the whole scheme of national defence.

Does the Second Amendment allow for any government abridgement of the right to keep and bear arms? It might just be possible to sustain an argument that a register of guns would not breach the Second Amendment provided there was no restriction on the right to own and bear weapons, that is no person could be denied the right either to appear on the register or bear arms. But even here it could be argued with some force that the registration of weapons – particularly if it required complicated bureaucratic procedures – was an interference with the general right to bear arms. Moreover, if a right is general and absolute, it is by no means clear how any procedure initiated by and insisted upon by the state could be legitimate because by definition there can be no legitimate restriction of the right.

Americans produce a multitude of reasons for retaining their guns. They argue on the grounds of personal liberty. They argue on the grounds of deterring crime. They argue on the grounds of personal protection. They argue on a dozen and one grounds. This to my mind is a mistake. Good causes do not need to be bolstered by a battery of  arguments. Good causes need but one argument. The only necessary argument for private gun ownership is in the Second Amendment: “A well regulated militia being necessary to the security of a free state, the right of the people to bear arms shall not be infringed.” The key words here are “a free state”. That phrase cannot mean solely to maintain the state in its independence from other states, because that could as well apply to a dictatorship as well as a democracy. In the context of the reasons for the American War of Independence “a free state” must also mean the maintenance of the freedom of the citizens from the oppressive power of the state. That after all was what the whole breach with England was about. Moreover, the Constitution and the Bill of Rights are written in a manner which actively extols the individual over the state, viz: “We the people of the United States in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” (preamble to the Constitution).

The general motivation for demanding gun control is not the saving of lives. (Its only effect in England has been to leave guns predominately in the hands of criminals and the state). Liberals wish to remove the general right of gun ownership in America for the same reason that they wish to interfere with peoples’ lives generally: they are natural authoritarians. They know that their philosophy (such as it is) conflicts utterly with human nature and are thus driven to suppress any resistance or dissent through the intimidation of political correctness and the practical control of public life. The disarming of the American people is part of this oppressive strategy.

The desire to restrict the holding of arms has always come from those who wished to not only monopolise power but to do so on their own terms. When the crossbow was invented, the medieval nobility attempted to ban it because it reduced the effectiveness of the armoured and mounted knight. Failing in that, they attempted to restrict, with some success, its ownership to people they could control. The Samurai in Japan enforced ruthlessly their rule that only Samurai should carry swords. When the demobbed conscripts of British Army returned to Britain after the First World War, the British government passed the first serious laws regulating gun ownership not because they feared that the British would begin to murder one another in great numbers but because they feared Red revolution.

If Americans wish to retain what is left of their freedom, they will do well to keep the Second Amendment intact. This means not merely retaining the status quo, but the mounting of legal challenges to every restriction on the holding and bearing of arms in the United States. The plain and hideously inescapable fact is that every attempt to restrict both gun ownership (or indeed any other weapon) and the bearing of arms made since the inauguration of the United States has been illegal. That applies whether or not the interference with the Constitutional right was undertaken at the federal or the state level. I suggest that legal action should consist not merely of Constitutional challenges, but civil actions for damages against the federal and appropriate state governments by those actively and personally denied the right to bear arms.



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