The Right to Bear Arms
The Right to Bear Arms
Sustaining freedom of the country has got to deal with many parameters. To say a country has an absolute freedom means that it has answer almost all the requirements of a free country where the rights of an individual or a citizen must be properly observed. One of the rights of a citizen that is very important in the showcase of individual freedom is the Second Amendment of the Bill of Rights of the US Constitution. The right to keep and bear arms is an individual right and therefore should always be observed and anything that violates this right of an individual by any means is considered unconstitutional.
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The right to keep and bear arms is simply goes along with the right of the individual to defend him/her from unexpected dangers. Without this right, it would probably results to serious crimes like homicide and stealing. This will also probably give way to criminals to do their planned crimes confidently given many law abiding citizens is prohibited from having their guns.
The Right to Bear Arms: Its History
During the reign of King Henry II of England in the 12th century, all freemen were obliged to bear arms for the defense of the public. This was vital at that time because of the incapability of the palace to defend due the lack of the soldiers. Eventually, King Henry III continue this process of acquiring defense system by having all men ages fifteen to fifty to bear any weapon other than knife. The palace obliged all of these freemen to protect the King and maintain peace and order to the best they can.
In the thirteenth century, long bow became the main armor-weapon of the British population. Edward I commanded that all person should have their own sets of weapon but also said that it must be used to defend themselves and community from those that will struggle with the policies of the throne. The sheriffs of London were also ordered by the King in 1369 to require all citizens to use their bows and arrows.
After the civil war in 1642, the control of England was primarily dictated by the English government. They make the Parliament out of the system and commanded their officers to search for any firearms that were owned by the people who were against the rules of the government. During the reign of Charles II, the Militia Act was enacted. Under this Act, officers have the right to search and confiscate any form of firearms owned by people who were believed to be dangerous to the throne. The Irish was also affected by this Act during the reign of James II who continued the Act and concentrate on them as the target population. With this change, all Protestants were obliged to surrender all their firearms and they were prohibited from acquiring any.
James II was overthrown by “the Glorious Revolution” in 1668 which was due to the Parliament declaration that he violated the Declaration of Rights or |Bill of Rights. His successor, William Orange promised in the eyes of the Parliament that this right of the people will always be observed at all times.
The Militia Act was been debated in the House of Commons. The most debated topic under this act is the disarmament which many believed has violated the right of the people. Most commonly is the Irish population which was then under the English Kingdom. They argue that the disarmament of all citizens was being done to extend their ruling in the nation.
In the House of Commons, the right to keep and bear arms was for the purpose of the common good and that the firearms that taken from them be returned. This ws changed under the House of the Lords which declare that Protestant may have their arms for the defense of themselves under suitable condition and is allowed by the law. The small population of the Catholics made it them prohibited from carrying or keeping firearms. The poor citizens were not allowed to keep firearms under this declaration of the House of the Lords. Traps and other equipments used for hunting were also restricted things. The parliament reenacted the bill which made all Englishmen accessible to firearms.
According to the English Bill of Rights, the Protestants can have their arms for their defense. This right was still under the conditions provided by the Law. This right to acquire arms according to Sir William Blackstone is a common law. This common law was explained as a self defense and self preservation when the government is incapable of defending the rights of their people.
The Colonists during the American Revolution protested British efforts to disarm the militias. The evidence did not show any positive side in favor of restricting any rights t0o bear arms and to defend themselves. The Boston Massacre is a case where in John Adams call up for the common law of self-defense. In this incident, five civilians were being shot by British Troops up to death. John Adams also believed that it will be of great help if only the civilians are able to protect themselves against this bad incident
In Massachusetts, all citizens armed themselves when the British increased their army. Many argue about whether this individual right was only given by the British government or is it the absolute right of an individual under the Bill of Rights. They believed that keeping firearm is a common law which is applicable to all individuals.
The right to keep and bear arms is among the most celebrated individual right other than the freedom of the press that was enjoyed by the colonists. Many proofs of this individual right were seen during prior to the American evolution. In September, 1774, 60,000 freemen assembled and used their arms to defend their self against the violation of individual rights. The American Revolution shows how the right to keep and bear arms protects all other individual rights that may be violated. This formed many informal and formal groups of armed freemen for the liberty and freedom of the Colonists.
After the revolution, the debates about the responsibility of all the citizens to keep and bear arms were at hand. Among the most showcased proposals of having arms is from Baron von Steuben, who clearly states in his proposals that a selected militia will be form and it will be paid by the government. This proposal was criticized by many as autocratic. Richard Henry Lee in his widely read pamphlet “Letters from the Federal Former to the Republican”, state that the formation of a selected militia will be a vital factor in the preservation of the liberty of the people and of the whole nation. According to him, once a selected militia is form the larger population will be disarmed and only few which were chosen will be keeping their arms. This in effect, made it possible for the enemy of the state to attack its people who were defenseless. He also added that it will be a showcase of freedom if the right to bear arms is observed to all citizens and not only to selected militia.
Lee was also one of the senators that passed the Bill of Rights. This was among the reasons why the right to keep and bear arms was of individual value and not right of the state. Federalist and anti-federalists join the same view in support of the right to keep and bear arms should be given an individual perspective.
The more convincing case for the individual rights perspective for the Second Amendment is that it comes from the State demands for a bill of rights. One of the first proposals in the right to keep and bear arms came from group of Pennsylvania delegates which have later effect on he discussion of the bill of rights. In their proposal, it is stated that all freemen should have their own right to keep and bear arms to defend themselves and the nation as a whole and no further law shall be passed that prohibit citizens from enjoying this right given that they are not a threat to the peace of the state and no crime is committed by the individual.
James Madison, the author of the Bill of Rights, did not start from scratch in forming it. He considered all proposals of the different states for the Bill of Rights. He proposed that:
“The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service.” (Annals of Congress, 434)
Eldridge Gerry objection of the phrase “no person religiously scrupulous” was taking into consideration and was removed. He argued that the future Congress might abuse the exemption. The final proposal that the House passed and now still in its present form: “A well regulated militia, being necessary for the security of the free state, the right of the people to keep and bear arms, shall not be infringed.” It was later passed by the Senate with also the intention to provide individual rights.
Second Amendment Commentaries
St. George Tucker, previous Chief Justice of the Virginia Supreme court, published an edition of Blackstone interpretation of the American Law. According to Blackstone, the right of the individual to keep and bear arms depends on their condition and should be allowed by the law.
In 1825, William Rawle’s “View of the Constitution” published in Philadelphia that under the Second Amendment:
“The prohibition is general. No clause in the Constitution could be a rule of construction be conceived to give Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.” (Rawle, 125)
Tucker and Rawle shared the same view on bearing arms, so was Joseph Story which wrote his “Commentaries on the Constitution” In his comments, he cosiderered the right to keep and bear arms as “the palladium of the liberties of the republic”, which prevented tyranny and keep it a protection of the citizens against the state. (Story, 746)
In the second Congress, the same view is shared in interpretation of the Second Amendment as an individual right. According to the Militia Act of 1792, the second Congress referred “militia of the United States” to the entire free adult male in the United States. They were obliged by law to possess firearm for the defense of themselves. This actually made the word “militia” referred to the actual population of the nation and not to formally formed groups like the National Guards.
The Second Amendment vs. States Law Policy
Does a state law policy should be followed and not be revoke even it violates one of the main core of the Bill of Rights? This is the question that can be clear by considering the case of the District of Columbia vs. Heller. This case is between the Second Amendment and Columbia’s ban on all functional guns.
All handguns not registered before 1976 is the focus of the Washington’s handgun ban. This also requires individual which owns legal shotguns and rifles to be kept unloaded and lock at all times. The argument of the citizens who have the purpose of having a legal property of firearm is for them to defend themselves against criminals.
The US Supreme Court which is the most powerful judicial body has to decide if the Second Amendment guarantees an individual right to keep and bear arms (not limited to people in militia). They should also decide whether the Columbia’s gun ban violates this individual right and hence unconstitutional or not.
In 1837, Georgia totally banned pistols except the large pistols which were used horsemen’s pistol. In the case of Nunn vs. State, the Georgia Supreme Court believed that the decree was unconstitutional and violated the Second Amendment. The court made a decision that the Bill of Rights is consider as a protection of the individual rights and that the Second Amendment states that:
“the right of the people, old and young men, women and boys, and not militia only, to keep and bear arms of every description, and not merely such as are used by the militia, shall not be infringed, curtailed, or broken in on, in the slightest degree, and all this for the important end to be attained: the rearing up and qualifying of a well regulated militia, so vitally necessary to the security of the free state” (Nunn vs. State, 243)
In the case of Miller vs. United States, the Supreme Court reversed their investigation on the nature of the firearm and its connection with the Second Amendment. They believed that the court did not take consideration the nature of the use of the firearm but only the nature of the firearm itself.
Finally, the Second Amendment right to keep and bear arms is therefore an individual right for every citizen of the Unite States. The individual right is in accord with the history of the right to keep and bear arms. Thomas Jefferson and Samuel Adams, the founders of this nation, shared same views to the rights of the citizens against the state.
The right to bear arms was founded in the context of a revolution: the revolution against tyranny and royal oppression. Though clearly understood by the revolutionaries as a fundamental principle, its evolution both in form and substance was eminent. One could probably read some of the laws and statutes that somehow limit that right to some degree. This was the result of the multiplicity of interpretations.
The body with the final say as to this right is the US Supreme Court (final arbiter of the law). Note that all decisions of the Supreme Court regarding this right were all accepted by contending parties; even if some of those decisions were contradictory in nature. Only the passage of time will an interpretation be synonymous with the dictates of the law and the general social context.
Annals of Congress (1789), p.434
Rawle, William. A View of the Constitution (2nd edition, Philadelphia, 1803), p.125-126
Story, Joseph. Commentaries on the Constitution. Vol.2, 1833, p.746
Nunn vs. State, 1846, p.243