English Common Law Right to Bear Arms

The Virginia Convention set the record for legal and intellectual talent. Key participants included Patrick Henry, George Mason, James Madison and John Marshall. The most important writings of this period came from Richard Henry Lee, who had promoted the drafting of the Declaration of Independence in the Continental Congress. In his Letters from the Federal Farmer to the Republican, he warned that Congress could suddenly undermine the strength of the “Yeomanry of the land” who owned the land, “own guns, and are a group of men too strong to be openly offended.” [89] He added, “This could be done to a large extent by Congress if it is willing to do so by modeling the militia. Should one-fifth or one-eighth of the men capable of carrying arms be transformed into a chosen militia, as has been proposed? and all those who elaborate a plan that renders them meaningless, the former will fulfill all the objectives of an army, while the latter will be defenseless. [90] Like others in Connecticut and Pennsylvania, Lee feared a “selective militia” similar to the modern National Guard, which he saw as a betrayal of militia tradition and akin to a standing army. In plain language, he advised: from the text, as well as a correct understanding of contemporary ethics on weapons and freedom, it seems to us to be extremely clear that the main objective of the amendment was to guarantee a personal and individual right to the possession and use of weapons. However, we cannot (as the individual legal contingent usually does) completely ignore the first part of the text, which proclaims a well-regulated militia necessary for the security of a free state. [38] Second Amendment issues were rarely brought before federal courts at the time, simply because there was no federal control over gun ownership. But the position of the U.S.

Supreme Court was raised in the famous Dred Scott case, where it concluded that free black Americans were not citizens. The majority said that if blacks were considered citizens,” “who would be entitled to the privileges and immunities of citizens,” they would have freedom of expression and assembly, “and to keep and bear arms wherever they went.” [106] Based on current literature, one might think that this monarchical decree, written three-quarters of a century before Chaucer`s Canterbury Tales, replaces the explicit language of the Second Amendment, which recognizes “the right to bear arms.” [22] Moreover, as William Hawkins has made clear, “no carrying of arms is in the spirit of the law unless accompanied by circumstances likely to frighten the people.” [23] But the beating of the dead horse continues unabated. After the American Revolution of 1776, one of the first legislative acts undertaken by each of the newly independent states was the adoption of a “statute of admission,” which gave force of law to existing English common law, unless the legislation or constitution expressly rejected English law. [10] The fifth and final ancillary right of the subject, which I will mention now, is to have weapons for their defense, appropriate to their condition and degree, and as permitted by law. This is also explained by the same law and is in fact a public authorization, with the necessary restrictions, of the natural right to resistance and self-preservation, if the sanctions of society and the laws are not sufficient to curb the violence of oppression. [9] Contrary to this understanding of the question, Professor Schwoerer asks, “Is this really what Blackstone wrote and meant?” [105] She repeated her irrelevant point that the law was not “unrestricted” and concluded, “Blackstone`s language shows that he did not advocate an unlimited right of the individual to arms. [106] Similarly, Scalia J. did not find that the Second Amendment to the United States Constitution was an unlimited right of individuals to possess firearms. The right of all people, old and young, men, women and boys, not just the militia, to possess and bear arms of all kinds, not just those used by the militia, must not be violated, restricted or broken to any extent; and all this for the important goal that must be achieved: the creation and qualification of a well-regulated militia, so vital to the security of a free state. We believe that any law, whether state or federal, violates and is void against the Constitution that violates this right, which originally belonged to our ancestors, of Charles I. and his two evil sons and successors, restored by the revolution of 1688, brought to this land of freedom by the colonists, and finally visibly incorporated into our own Magna Carta! [58] The Second Amendment to the U.S. Constitution is a federal provision.

In 2010, this “fundamental” and “individual” right was granted with the 14th Amendment under SCOTUS in McDonald v. City of Chicago, which confirmed the previous opinion in District of Columbia v. Heller. Each of the fifty states also has its own national constitution. Forty-four States have chosen to explicitly enshrine the right to bear arms in their constitutions. [46] Each of the state constitutions, state laws, and state courts deals with the right of the state to bear arms in its respective jurisdictions. [47] The degree and nature of protection, prohibition and regulation at the state level varies from state to state. The District of Columbia is not a state and falls under the jurisdiction of the federal government.

Under Elizabeth, the English militia system developed even further; In fact, during their reign, the term “militia” was first used to describe the concept of a universally armed people ready to rise up to defend their nation. [25] The militia was now assembled by district lieutenants and called to official samples to show and practice with their weapons. [26] Elizabeth also called for the creation of “trained gangs” or “drawstrings,” which were small militia units that received special training and were equipped with state-purchased weapons. [27] [4] The Convention and Bill of Rights, Parliament of the United Kingdom, www.parliament.uk/about/living-heritage/evolutionofparliament/parliamentaryauthority/revolution/overview/billofrights/ (last visited 25 July 2021). It argued that there was no intention to create a right and no such effect, since the three forms of restriction (Protestantism, socio-economic “condition” and decisive qualifier “as permitted by law”) interfered with any real effect in the form of widespread individual possession of firearms. [39] The American understanding of the right to possess and bear arms was influenced by the English Bill of Rights of 1689, an Act of Parliament that also dealt with the personal defense of English Protestant subjects.