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?
Silly writer! Don’t you know the Constitution is old and outdated?!
Don’t you know guns are dangerous? Only the Government should have them!
Law are for the little people.
Our wise Progressive elites have the best interests of the Planet at heart, and we must do what they say. /S
For those who are sarcasm impaired, the /S means the above is sarcasm.
This is quite a piece of wishful gun-fetish propaganda that can’t even bring itself to quote the entire 2nd Amendment – conveniently leaving off the actual preposition discussing the right to bear arms that is in the Constitution: “A well regulated Militia, being necessary to the security of a free State,…”
Reading this piece, one would think it appropriate for citizens to not simply retain guns for sport or hunting, but rather to arm themselves to the teeth with automatic weapons, RPGs, and stinger missiles to prepare for the right-wing fantasy of inevitable assault of “mob and gang violence” in their own neighborhoods and the destruction of our civil society – nevermind that is the possession of “civilianized” semi-automatic weapons of war themselves that are the real threat to civic harmony.
The wisdom of a true “everyman” militia of the type known to the framers of the Constitution is not in dispute – countries such as Switzerland have used it to great effect to remain neutral during both world wars; able-bodied Swiss citizens all keep weapons in their homes, and the Swiss are known for their facility and comfort with weapons. What the author of this review wouldn’t tell you is that they are all LOCKED UP and that ammunition is STRICTLY CONTROLLED by the central Swiss government and active duty military.
What the author also ignores (aside from half the language of his beloved 2nd Amendment) is that militias are MILITARY – and that the fundamental premise of a Military is to FOLLOW ORDERS and SUBMIT TO REGULATIONS governing conduct and behavior – anything else would be madness in battle. By their very definition, Militias are ORGANIZED and serve to SUPPORT AND DEFEND THE GOVERNMENT of which their members are CITIZENS.
Anyone who has served a day in the military (and I have served 25 years) knows that weapons and ammo are only issued during actual times of conflict and operational need, and are among the most regulated and controlled pieces of equipage the military possesses.
The notion that a person off-the-street, without any background check or training whatsoever, can obtain a civilianized semi-automatic M-16 with hollow-point rounds to carry around and declare himself a member of a “militia” is clownish and detached from any understanding of what a military or militia in a historical or practical sense is.
We see the result in the example cited by the author – untrained civilians shooting each other with powerful weapons of war in “self defense.” Nevermind nightmare scenarios like the all-too-common school shootings and situations like Sandy Hook and Las Vegas.
No, what the author seems to be advocating is a lunatic idea – that anyone has the right to possess any weapon at any time for any purpose. This is clearly NOT what the Framers of the Constitution had in mind – they, of all people, understood the danger that a Mob presents to Civil society.
The readers of both the review of the book and the book itself would do well to read a bit more broadly than this cherry-picked selection of self-reinforcing gun propaganda – rather, read the decision of Heller as a primary source, particularly the dissents, and see just how shaky a premise these authors are putting forth.
Justice Antonin Scalia, writing in Heller, no wilting liberal: “Like most rights, the right secured by the Second Amendment right is not unlimited…. [It is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” – and – “For example, concealed weapons prohibitions have been upheld under the [Second] Amendment [and there is no] doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Gun rights are not unlimited – and it is insanity to advocate for them to be.
A horrifyingly narrow view which doesn’t even get to the second paragraph of the Heller decision, which states the right to use firearms for self defense is limited. Need I say more?
I’d only rather say I agree with the decision because those who are physically and/or emotionally handicapped have little other recourse but to kill in self defense. Any able person of sound mind should consider it ludicrous to kill in self defense. Plenty of non-lethal self defense methods are available. The 2nd Amendment movement is filled with insane maniacs who revel with delight at their ability to kill, as if human lives don’t matter at all, and all of them should be euthanized rather than let them continue in the self-inflcited emotional suffering all the rest of us also have to witness from them.
So y’all are ready to just submit to whatever the government orders you to do, even if it’s morally wrong? The government isn’t infallible, they are people too and when they overstep their authority or try to take away US Citizens’ rights, it’s our duty to speak up.