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The “right to keep and bear arms” an historic English right

'The Second Amendment means what the second half of it says'

Justice Antonin Scalia, the Supreme Court said the “right to keep and bear arms” is an individual right. In his painstakingly detailed historical analysis, Scalia said the amendment was not written to confer a new right, but to protect an existing right that had developed through the centuries in English law.

The Framers, well versed on past attempts of English kings to use their royal militias to disarm potential regional enemies in England, were protecting individual citizens of the newly-organized United States of America against future attempts of governments to disarm them, Scalia said.

Well at least somewhere on the globe the rights of the English under common law have been upheld, pity it isn't here.

UPDATE: More from Wolf Howling: A Constitutional Lesson In British History

This from Justice Scalia's opinion in Heller [citations removed for ease of reading]:

. . . Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. 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. 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.” This right has long been understood to be the predecessor to our Second Amendment. It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament. But it was secured to them as individuals, according to “libertarian political principles,” not as members of a fighting force.



By the time of the founding [i.e., the drafting of the U.S. Constitution in 1789], the right to have arms had become fundamental for English subjects. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and selfpreservation,” and “the right of having and using arms for self-preservation and defence.” Other contemporary authorities concurred. Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence. And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.”



There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. . . .

While the British wrote down the right of individuals to bear arms as against the Crown in the 1689 Bill of Rights, they wrote down no limitation on Parliament circumscribing Parliament's ability to extinguish their rights. Thus Britain lives under a tyranny of sorts today. Without any recognized Constitution, and with Parliament over a century ago having claimed for itself unlimited sovereignty, there are no permanent rights in Britain. Thus today you have in Britian a populace that has not only been largely disarmed of firearms over the past century, but a populace wherein the law abiding among them are prevented from carrying any sort of weapon for self defense. Even carrying the innocuous pepper spray is illegal.



And then of course there is the penultimate tyrannical act. In what amounts to a coup, the current Labour government has broken its promise to the people of Britain, given but three years ago, to give the people a vote in the decision to extinguish the sovereignty of Britain and become a province in a socialist and anti-democratic EU superstate. By this act, and in the even larger sense that this transfer of sovereignty severly and forever more degrades the democratic right of the British to choose their government, Labour evinces utter disdain for the liberty of Britian's citizens. And with that in mind, there is at least one more passage highly apropos from Justice Scalia's decision:

St. George Tucker’s version of Blackstone’s Commentaries, as we explained above, conceived of the Blackstonian arms right as necessary for self-defense. He equated that right, absent the religious and class-based restrictions, with the Second Amendment. See 2 Tucker’s Blackstone 143. In Note D, entitled, “View of the Constitution of the United States,” Tucker elaborated on the Second Amendment: “This may be considered as the true palladium of liberty . . . . The right to self-defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” . . .

I think the appropriate phrase to finish on is the truism, "those who do not remember history are doomed to repeat it."

Comments

Bear in mind, because it is glossed over in most accounts, that the 5-4 split was mostly about whether to overturn one particular law in one particular jurisdiction or return the case to a lower court. As to the individual vs collective right, the Justices were unanimous - albeit the minority were annoyed that the men who wrote the Second Amendment to the U.S. Constitution did not reserve the right to government.

Teqjack,

"albeit the minority were annoyed that the men who wrote the Second Amendment to the U.S. Constitution did not reserve the right to government."

That's the WHOLE point of the Constitution. It's a LIMITATION on government. The STATE shall not, yada, yada. If it isn't specifically mentioned, the STATE is verboten.

That a Supreme Court Justice would dissemble on that is scary. Truly scary.

Limited government as the founders envisioned was the most radical political stance in human history.

And most precious.

The purpose of the Second Amendment is to protect these little twisted control freaks from the consequences of their actions. If the amendment was not there, they would attempt a blanket ban.

If they come for our firearms, we will kill them. Period.

I'm a U.S. citizen and resident. The part of the Heller decision that I find most frightening is that the vote was 5-4. The right to bear arms was very well understood by Americans to be an individual right from the founding of the republic through the 19th century. No one seriously questioned such. The rise of the collectivist viewpoint coincided with the rise of Marxism [as well as its blood brother, Fascism], whose philosophy was that all citizens merely existed to serve the state. Justice Stevens' dissent, which I have read, I find remarkably vacuous. It is akin to 'scientific communism'.

We should all thank Robert Levy, who took a chance and bankrolled this case. He is a former DC resident, now living somewhere in Florida, who took the chance despite advice against such by many RKBA folk.

Henry

Robert Levy lives in the same county as I do, in Florida, and if I happen to meet him, I'll buy him a drink or five.

Or maybe a book or five; he seems like he'd like that better.

Robert Levy lives in the same county as I do, in Florida, and if I happen to meet him, I'll buy him a drink or five.

Or maybe a book or five; he seems like he'd like that better.

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