The Real Second Amendment
By Bart Wilburn
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
As simple as these word are, we have been arguing about what they mean for a long time. Part of the problem is that many people engaged in the argument do not interpret the 2nd Amendment with respect for its historical context, but rather in light of what they want it to mean in support of their purposes. If we want to be honest about it, we must look to the origins of the amendment to understand it in the context of the framing of the U.S. Constitution, and only then can we consider it in our present context. The issue is further complicated by the fact that an increasingly large proportion of the U.S. population has no experience in the use of arms; they see arms as irrelevant to their lives at best or a threat at worst. This is important because the 2nd Amendment is always susceptible and becomes vulnerable when too many think it is an archaic artifact. We must first understand that we did not invent the 2nd Amendment; we inherited it. The justification of the 2nd Amendment is rooted in late 12th and early 13th century England with the innovation of the Welsh; later called English, longbow. The longbow was a formidable weapon that made the English army the most feared army in Europe and determined the course of European history. It links to the 2nd Amendment because standing armies are expensive and the King of England did want to bear the cost; he relied on the barons of the shires to provide an army on demand. But the barons were not willing to bear the cost of a standing army either; they preferred to rely on the villagers of the shires for a militia of longbow artillery to support the king's demands. (See G.M. Trevelyan, The History of England, Longman Group, 1973, p. 268)
This arrangement was complex in an economic as well as political context. In the 12th century, England was well on the way to shaking off feudalism and developing a corporate civil structure of local governance. William the Conqueror restructured England and introduced the manorial structure; Henry I introduced the legal notion of a jury with his Charter of Liberties, and Henry II introduced the peculiarly British notion of Common Law. The barons of the shires were tasked to raise the taxes demanded by the king under the manorial structure. This put the barons in the predicament of taxing the villagers while at the same time having to manage the productivity of the shires to provide the revenue demanded by the king. They were caught between 'keeping the king's pleas,' and 'keeping the king's peace.' The barons understood that a willing farmer was more productive at less cost to them than an unwilling farmer, and soon realized they had a vested interest in having a voice in the king's demands, governance, and his expensive adventures. The barons also realized that, in principle, they had the power of arms effectively under their control. Their problem was maintaining unity in the face of royal power, but more than that, the challenge of sustaining the basic resource -- the artillery of longbow archers.
The longbow was not a simple weapon either to use or to make. It took four years to make a longbow, and generations of experience to properly use it. The longbow was simply not something a local, ad hoc militia could train inexperienced conscripts to use. To solve this dilemma, the barons directed that villagers should keep a longbow in their homes and maintain their skill in the art of making and using it. Further, they established regular tournaments to achieve this goal. The barons were wildly successful in their efforts. They entered London on June 15, 1215 with their militias and forced King John to submit to the rule of law prescribed by the Magna Carta. The Magna Carta subordinated the king to the rule of law based on Henry I's Charter and the notion of common law throughout the realm, and it set England on the path to developing representative parliamentary democracy.
The 2nd Amendment to the U.S. Constitution was derived from our understanding of the British experience that militias were necessary to curb the tyrannical powers of the king. In our case, 'well regulated militias' were necessary as a condition of the colonies to agree to subordinate their sovereignty to a federal government. They wanted a guarantee of power to insure that some future federal government could not egregiously exceed its powers prescribed in the body of the constitution they agreed to. Furthermore, like the militias of the English barons, these state militias were formed ad hoc from the populace as needed on short notice and therefore depended on the populace being already proficient in the art of arms. The only way the Founders of America could guarantee this capability was to encourage civil proficiency in arms and make private ownership and use of arms a tenet of the constitution establishing the government. For these reasons, it should come as no surprise that the rights of freedom of speech and to 'keep and bear arms comprise the first and second amendments to the constitution establishing them as rights of citizenship. We should not consider this rationale archaic. Democracy is fragile and always susceptible to despotism, and we should not be so arrogant as to suppose we are not equally susceptible.
Limiting the power of the federal government to subjugate the populace is the primary purpose of the 2nd Amendment, and nothing in it restricts the use of arms consistent with maintaining proficiency consistent with life, liberty, and the pursuit of happiness. What we do with guns is the subject of existing criminal law, but having them is not. Arguments against the 2nd Amendment based on recreational use of arms and the futility of home defense are deflections. Under the 2nd Amendment, owning and using guns is not simply permitted, but is presumed; local, even federal, laws and regulations cannot lawfully infringe on it. The 2nd Amendment is always susceptible to tyrants, but is vulnerable if too many of us are ignorant of its purpose.
No comments:
Post a Comment