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An individual right protecting against both public and private violence


Those who believe that their government will always have their best interests at heart and will always protect them, that the police will always arrive in time to save them if they are attacked - rather than in time to draw a chalk line around the disposition of their bodies - have no need to read about the 2nd Amendment in the American Bill of Rights or its historic connection with British liberty and the right of self-defence.

They will have little interest in the majority decision of the US Supreme Court (26 June 2008), which affirmed that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

They live in the best of all possible worlds - a world in which they have never been mugged, never had their home robbed, and never been raped; a happy world that never saw Jews, Armenians, Irish, Bosnians and the people of Darfur first disarmed and then violently murdered; a world in which laws against guns do not leave law-abiding families defenceless; and where they will never need to protect their children from assault. In their untroubled world, families are not being watched and arrested by the state for innocent behaviour and the oppressions which inspired the British and American Constitutions never existed.

Not for them the great Sharp, de Lolme and Blackstone, whose irreplaceable contributions to liberty and security Supreme Court Justice Antonin Scalia quotes in the US Supreme Court's opinion (26 June 2008). That opinion, as GW observes, turns on British history.

But not only British history. Celts, Britons, Anglo-Saxons, Scandinavians, Romans, Israelites, Christians and many other peoples believed (and still believe) in the right of self-defence. In Hebrew the Sixth Commandment did not read 'Thou shall not kill', but 'Thou shall not murder'. Jesus makes the same distinction though translations of the Greek typically obscure it. He never said to turn the cheek of a child so she could be struck a second time. I think most people would like to work things out peacefully, but sometimes they have to use force or see innocents destroyed.

The Second Amendment of the US Constitution, reads -

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The Supreme Court uses Dr Johnson to illuminate the common meaning of the words at the time they were written in the 18th century, and explains why keeping and bearing Arms meant so much to the English. (It meant everything to the Scots, Irish and Welsh as well.) It describes the political history in Britain that lay behind the right to bear arms -

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. See J. Malcolm, To Keep and Bear Arms 31–53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). 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. See Malcolm 103–106.

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." 1 W. & M., c. 2, §7, in 3 Eng. Stat. at Large 441 (1689).

This right has long been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights and What It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of America 122 (1825) (hereinafter Rawle). 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 see 3 J. Story, Commentaries on the Constitution of the United States §1858 (1833) (hereinafter Story) (contending that the "right to bear arms" is a "limitatio[n] upon the power of parliament" as well). But it was secured to them as individuals, according to "libertarian political principles," not as members of a fighting force. Schwoerer, Declaration of Rights, at 283; see also id., at 78; G. Jellinek, The Declaration of the Rights of Man and of Citizens 49, and n. 7 (1901) (reprinted 1979).

By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, "constituted the preeminent authority on English law for the founding generation," Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). 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," id., at 139, and "the right of having and using arms for self-preservation and defence," id., at 140; Cite as: 554 U. S. - (2008) 21 Opinion of the Court see also 3 id., at 2–4 (1768).

Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886–887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59–60 (1785).

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 [1689], to keep arms for their own defence." A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1968). 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." 1 Blackstone's Commentaries 145–146, n. 42 (1803) (hereinafter Tucker's Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833). 22 DISTRICT OF COLUMBIA v. HELLER

In 62 pages the Court explained the relationship of the opening clause to the operative clause and established that the 'right of the people' "unambiguously refers to individual rights, not 'collective' rights, or rights that may be exercised only through participation in some corporate body".

The Court also concluded that its opinion should not be taken to cast 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.

Tragically there are people who deliberately try to hurt others. In an Amicus brief to the Court a group of 126 women legislators and academics said that a woman's best defence against overwhelming force was to be armed.

A great debt is owed to those British who established and defended freedom, and to the Americans who built on their foundation.

Note: The italics are ours.

We salute two who have done some of the inestimable research on which the opinion was based - Janet Malcom and Volokh.