Talk:Second Amendment to the United States Constitution/english history sandbox

English history
The right to bear arms in English history is believed to have been regarded as a natural right for the preservation of the person, though one Amercian historian has expressed a contrary view that the right developed over a period of 500 or so years beginning in the twelfth century. The period from the mid 1500s though to around 1700 was one of great instability based on religious divisions (between Catholics and the growing numbers Protestants) and differences that set parliamentarians (the landed gentry) against the King. The English Civil War did not totally resolve the powers dispute between the primarily Protestant parliament and the Catholic-leaning monarchy. From the civil war until the Glorious Revolution, militias occasionally disarmed Catholics, and the King, without the consent of parliament, likewise occasionally disarmed Protestants. After the parliamentary side effectively ousted James II in favor of William and Mary parliament passed the English Bill of Rights of 1689. The Bill of Rights contained text which aspired to bind future parliaments, though this was unconstitutional itself because no parliament can, under English Constitutional Law, bind any later parliament. Nevertheless, the Bill of Rights remains an important constitutional document, more for enumerating the rights of parliament over the monarchy than for contain a clause concerning a right to have arms.

Scholars and lawyers recognize that the Second Amendment has its origins in the text of the English Bill of Rights of 1689 though one disputes its relevance.

This is how the English Bill of Rights statement on the right to arms is often quoted:

That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.

On the face of it, it seems that both the American and the English texts are about the granting of a right to arms; in the U.S. case, a right granted to the Militias of the individual states, and in the English case to the subjects that are protestants.For those Americans who prefer to believe that this really was the granting of a new right regard the English Bill of Rights as a moment of momentous concession. However, there are many scholars who believe simply that the references to Protestants having the right to arms was merely a reinstatement of an ancient right illegally taken away by the previous King. For a complete understanding one must read the full context of this clause to understand its meaning.

Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome (list of grievances including) ... by causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law, (Recital regarding the change of monarch) ... thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation takeing into their most serious Consideration the best meanes for attaining the Ends aforesaid Doe in the first place (as their Auncestors in like Case have usually done) for the Vindicating and Asserting their auntient Rights and Liberties, Declare (list of rights including) ... That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.

The historical link between the English Bill of Rights and the U.S. Second Amendment and them both codifying an existing right and not creating a new one has been acknowledged by the U.S. Supreme Court. "This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we (the United States Supreme Court) said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed ..”. Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded inusing select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 31–53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103–106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” 1 W. & M., c. 2, §7, in 3 Eng. Stat. at Large 441 (1689). This right has long been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights andWhat It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of America 122 (1825) (hereinafter Rawle)." From the Opinion of the Court in District of Coöimbia versus Heller http://www.supremecourt.gov/opinions/07pdf/07-290.pdf

The English text used the term to have arms while the American text uses the term bear arms which historians have described as having a military connotation in context of the necessity for militia to protect a free state.

The English law includes the proviso that arms must be as "allowed by law." This has been the case before and after the passage of the Bill of Rights. The Bill did not override earlier restrictions on the ownership of guns for hunting written to preserve the hunting rights of the landed aristocracy, and applying the principal of parliament's right to repeal, explicitly of implicitly. A few, however, contend that, as the Bill of Rights provision has not been repealed, it remains effective, parliamentary supremacy notwithstanding. Parliament thouugh has repeatedly increased restrictions on firearms or other defensive weapons so as to make the legal possession of them virtually impossible. These actions have generally reflected British public's concerns over their potential misuse as weapons of offense. The Supreme court of the United States also noted that the American right is not absolute and is subject to legislative controls, though it mentioned reasonableness as to access by felons and the insane. However, the American Second Amendment, because of the nature of the U.S. Constitution, is much less subject to diminution or elimination.

There is some difference of opinion as to how revolutionary the events of 1688-89 actually were and several commentators make the point that the provisions of the Bill of Rights did not represent new laws, but rather stated existing rights. Mark Thompson wrote that, apart from determining the succession, the Bill of Rights did "little more than set forth certain points of existing laws and simply secured to Englishmen the rights of which they were already posessed [sic]." Some American writers have very different opinion. The scholar Rich Smith contends that right to bear arms only attached to Protestants. and another scholar David Hemenway, identifies the text as a gun control measure drafted by wealthy Protestants to restrict firearm ownership to other wealthy upper-class individuals, pointing to the word "condition" as a euphemism for socioeconomic status. English law had thus recognized the right of Protestants to have arms suitable for their defense as allowed by law. Notwithstanding the restrictions in effect before 1640 these had not interfered with the basic duty of certain English people to keep arms for militia service. It was the caching of large quantities of weapons by Catholics that was deemed to be potentially threatening during transition from the old militia to the new. Before and after the Bill of Rights, the government could always disarm any individual or class of individuals it considered dangerous to the peace of the realm. In 1765, William Blackstone wrote the Commentaries on the Laws of England describing the right to have arms in England during the eighteenth century as a natural right of the subject that was "also declared" in the Bill of Rights.

"The fifth and last auxiliary right of the subject, that I shall at present mention, 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 I W. & M. st.2. c.2. 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."

In both England and America, subjects and citizens have created militias. Beginning with King Henry II's Assize of Arms of 1181, certain English subjects were obligated to keep and bear arms for military duty. Later, in response to complaints that local people were reluctant to take up arms to enforce justice for strangers, The Statute of Winchester of 1285 (13 Edw. I) declared that each district or hundred would be held responsible for unsolved crimes. Each man was to keep arms to take part in the hue and cry when necessary. Without a regular army and police force (which was not established until 1829), it was the duty of certain men to keep watch and ward at night to capture and confront suspicious persons. Every subject had an obligation to protect the king's peace and assist in the suppression of riots.