The Right to Bear Arms: A Review

It took until 2008, in District of Columbia v. Heller, for the Supreme Court to affirm that the Second Amendment, which states “the right of the people to keep and bear Arms, shall not be infringed,” does indeed protect an individual’s right to do so, outside of militia service and for non-criminal purposes.

This divergence between the right to possess and carry around a weapon as expressed in the Constitution and its recognition (or lack thereof) by individual states serves as the topic of The Right to Bear Arms: A Constitutional Right of People or a Privilege of the Working Class?, the newest analysis of Second Amendment history by noted appellate lawyer and scholar Stephen Halbrook.

From the very beginning of the book, it is clear that Halbrook, a Senior Fellow at the Independent Institute and winner of three Supreme Court cases, commands voluminous legal experience. In the preface, Rothschild Research Professor of Law at George Washington University Law School Renée Lettow Lerner even goes so far as to say Halbrook’s work in the 1980s represented “a new birth of freedom” by single-handedly establishing the field of Second Amendment scholarship.

However, it seems that the fact the field had to be established in the first place is precisely why Halbrook decided to write The Right and its sister publications (such as That Every Man Be Armed in 1986). As the author himself says, “[s]ince the 1960s, the Second Amendment has suffered more than its share of disrespect.” He sought and still seeks to correct that injustice.

The 1328 Statute of Northampton, passed by parliament under the rule of Edward III, made it illegal to “bring…force in affray of the peace,” to terrorize the King’s subjects by bearing arms.

Unlike most appellate scholarship which proposes one revolutionary reinterpretation of an amendment or another and relies upon the abstruse legal argument, The Right does nothing but present the reader a history of the Second Amendment, for the author understands each American’s right to “keep and bear arms” does not have to be proven. He knows that a recounting of history and simple logic are more than enough to verify the true meaning of the amendment: that the citizen has a right to 1) possess a weapon, 2) take that weapon with them in their daily lives, and 3) use it in the defense of themselves, their kin and property, and their community, if circumstances demand.

This brings us to the actual content of the book.

The major insight the reader gains from The Right is that the Second Amendment did not establish gun and self-defense rights but preserved them in their pre-existing broadness and universality. After all, the right to bear arms is not an American right but an Anglo-American right—Halbrook traces recognition of it back to some of the most ancient of Common Law.

The 1328 Statute of Northampton, passed by parliament under the rule of Edward III, made it illegal to “bring…force in affray of the peace,” to terrorize the King’s subjects by bearing arms.

Another law concerning the carriage of arms came in 1350 and made it an offense for “any Man of this Realm [to] ride armed or secretly with Men of Arms against any other, to slay him, or rob him, or take him, or retain [kidnap] him.”

Despite the best efforts of progressives who claim that Common Law proves a limited meaning to the Second Amendment, the aforementioned laws restrict only the bearing of arms with violent intent.

One can easily understand the scale of freedoms belonging to subjects of the English Crown in the 1689 Declaration of Rights. The declaration, which codified “true, ancient, and indubitable rights,” stated that Protestants “may have Arms for their Defence suitable to their Condition, and as are allowed by Law.”

Notwithstanding restrictions on arms ownership by Catholics and Irish due to fears of unrest, every Englishman was recognized by his government to have an absolute right to keep and bear arms.

This right carried over to the Americas during the settlement of the Thirteen Colonies, Halbrook explains, and even transformed into a duty: “colonial Americans were often required by law to carry them [weapons].”

American life in 1621, as in 2021, was dangerous. The defense of individuals and of their communities from natives and wild animals necessitated a culture of arms. A 1642 Maryland law even required all males above 16 to keep weapons “in continuall readiness” (sic.).

The Founders of our land and the Framers of our Constitution grew up in this culture and embraced it. Halbrook’s example of how Deborah Franklin, wife of Benjamin, defended her Philadelphia home from a riot in 1765 makes this clear. As he says, “the Founders not only regarded the right to keep and bear arms as a fundamental right, they were also ready to use arms to protect their lives and habitations from mob violence.”

Our nation’s love for arms further aided in our birth, for militia formed the backbone of the Continental Army. “Recognition of the right to keep and bear arms and its near universal exercise among the American people contributed greatly to the winning of the Revolutionary War,” Halbrook says.

With these facts in play, the idea that the Second Amendment does anything but codify Americans’ broad right to own and carry firearms should seem outrageous.

That is not even to mention the preposterous idea that it is constitutional for jurisdictions to restrict the number of arms or quantity of ammunition an individual can own: for “[o]n a practical level, in the same period as the Declaration was being drafted, one could freely buy ‘100 Pair Horseman’s Pistols, neatly mounted with Steel,’ as advertised by a Boston newspaper.”

Further, the Framers certainly did not intend for gun rights to apply only to a select militia but to the militia of the people as a whole, the ultimate bulwark against tyranny.

The moment I finished the book, I immediately started making plans with my friends for a range day.

Later portions of The Right to Bear Arms cover the right’s history in both antebellum and postbellum America up through Jim Crow and the rebirth of judicial controversy over the amendment starting in the 1960s. However, to be frank, I do not believe these chapters are where the book’s power lies.

The Right is valuable because it educates the reader in his natural, constitutionally-protected right to keep and bear arms with unique power and clarity. How convincing is Halbrook? The moment I finished the book, I immediately started making plans with my friends for a range day.

The author explains in simple terms the core truths of the Second Amendment.

For example, that the right to keep and bear arms means more than siloed possession in, virtually, one’s home and one’s home alone (as New York State requires).

That the language in the Constitution would not make sense if only a militia could keep and bear arms.

That the Second Amendment right pre-existed the Constitution and is equal to the First and Fourth Amendment rights in inviolability, importance to a free society, and universality—after all, these three amendments are the only portions of the Bill of Rights to explicitly utilize the term “right of the people.”

Thankfully, as Dartmouth students, we are blessed to live in New Hampshire, one member of a scattering of jurisdictions where freedom encounters more fierce devotion than apathy or neglect.

By The Right’s end, it seems more reasonable for one to read Anglo-American history and conclude that the Framers would have supported training and arming every American than anything approaching the “common sense” gun reform proposed by liberals, leftists, and their ilk.

With greater Democratic control of state legislatures over the last decade, the societal dysfunction wrought by COVID-19, and the increasingly regular mob and gang violence, preservation of the god-given right to self-defense by the keeping and bearing of arms is more important than ever. Just last year, a young man from Wisconsin faced the pointy end of the liberal establishment’s sword and a nationally covered trial for utilizing the Second Amendment to put down a mob affraying the peace and terrorizing the town of Kenosha.

Some courts would make the Second Amendment right a second-class one, that we would have to prove we have in the first place. But Halbrook demonstrates beyond doubt in his book that the responsibility actually lies upon the critics of the Second Amendment to prove they can restrict it.

Thankfully, as Dartmouth students, we are blessed to live in New Hampshire, one member of a scattering of jurisdictions where freedom encounters more fierce devotion than apathy or neglect.

So let us then exercise our gun rights here.

For the right to keep and bear arms—to keep tyrannical governments, baying mobs, and perfidious robbers at bay—is our own. And the language of the Constitution can’t get any clearer.

What do gun control advocates think “shall not be infringed” means?