The Potowmack Institute

DEFENSE (Part 2)


Washington, DC.



Ms. MALCOLM. I want to thank you, Mr. Chairman and members of the committee, for inviting me to appear here this morning. This is an unusual honor for an historian of 17th and 18th century history and testament to the committee's real concern to understand the second amendment, the most controversial and least understood of our constitutional rights.

Some 10 years ago, a committee of attorneys was charged to report on the meaning of the second amendment to the American Bar Association. After an analysis, they threw up their hands and concluded, "It is doubtful that the Founding Fathers had any intent in mind with regard to this amendment." Happily, neither this committee, nor most of us, would regard the Founding Fathers as so frivolous, or our own understanding so weak, as this assessment implies. But few have time for the original research necessary to get to the truth, for while much as been written about gun control until recently there was very little dispassionate scholarship.

Over the past 10 years, I have studied the history of this right from its English origins to its incorporation in the American Constitution. My intent has not been to add fuel to a sufficiently fiery debate, but to shed light on its development and, above all, on its meaning. My findings appear in a book, To Keep and Bear Arms that was published last year by Harvard University Press. And I should like to tell you briefly what I found.

I found that, until our own century, there was agreement that the second amendment protected an individual right to be armed and that it was a major cornerstone of freedom. The English historian, Thomas Macaulay, dubbed this "the security without which every other is insufficient," and the great American Justice, Joseph Story, proclaimed it "the palladium of the liberties of a republic." It was not until a movement began intent on curbing individual ownership of firearms that new interpretations emerged which denied that an individual right was ever intended.

I found that the right for individuals to be armed did not spring newborn from the perilous circumstances of the American frontier. Nor it was it attributable to a love of hunting. It was a right the colonists brought from England; its enjoyment was guaranteed in their colonial charters. From early in the Middle Ages, what Englishmen called "time out of mind" they had been required to be armed to protect themselves and their neighbors. They had to take turns standing watch, to raise a "hue and cry" when crimes occurred, and then join a posse to pursue the culprits. They were also expected to participate in a militia to defend their homes and land. This system of citizen policing was a cheap method of keeping order, but it required trust, trust in the people.

One result of the crucial civil wars between King and Parliament in the 17th century was the transformation of this duty to be armed into a right. During the wars, both sides tried to arm their friends and disarm their enemies, as you would expect, and pru-


dent individuals stockpiled weapons. Once the monarchy was restored in 1660, the new King and aristocracy adopted a series of measures to disarm their political opponents and restrict public access to firearms. But when the next King, James II, used these measures to disarm loyal law-abiding Englishmen and expanded his army and threatened English liberty and religion, even his supporters became deeply alarmed. He was deposed in what Englishmen have ever since called their "Glorious Revolution," and his daughter, Mary, and son-in-law, William of Orange, succeeded him. Before they ascended the throne, however, members of the English Convention Parliament were careful to draw up a Declaration of Rights to reaffirm the rights of the people. It became the model for our own Bill of Rights just a century later.

Among the rights it listed was the right for Protestant Englishmen, who were then some 95 percent of the population, and I'm quoting, "to have arms for their defence, suitable to their condition and as allowed by law." The final clause, "suitable to their condition and as allowed by law," might have been employed to narrow the right, but when you look at the court records and statements, you find that it was not. Up until 1920, Englishmen had a right to have weapons for their personal defense.

The English right to have weapons was exclusively an individual right. Its drafters emphatically rejected language that would have given the people only the right. to have arms "for their common defence," rather than "for their defence." The militia was not mentioned.

Just prior to the American Revolution, the great English jurist, William Blackstone, added a second dimension to the right. He saw the people's right to be armed as their protection when, in his words, "the sanctions of society and laws are found insufficient to restrain the violence of oppression." It would enable them to vindicate their other rights, should these be threatened. And it was this right with its dual purpose, individual protection and the protection of liberty, that the American colonists inherited and meant to perpetuate.

That was a quick tour through English history. Now for the second amendment.

Modern critics, ignorant of the historical tradition behind the second amendment, have derived an astonishing variety of meanings from its single sentence. They argue the purpose was to preserve State powers over State militia; that it merely protects the right of members of a militia— the National Guard of today; that the language "the right of the people" granted no one person a right to own a weapon. This last contention, of course, founders because it cannot be reasonably applied to the 1st, 4th, 9th, and 10th amendments, where reference is also made to the right of "the people."

As was the case with the English right, the second amendment was meant to accomplish two distinct goals, each crucial to the maintenance of liberty. It was meant to guarantee the individual's right to have weapons for self- defense, and these privately-owned arms were meant to serve the larger purpose Blackstone described, to give, the people the means to vindicate their liberties in extremis.


The American right, of course, is not a duplicate of the English right. In fact it's far broader, having no religious restrictions or reference to class. This was in keeping with colonial practice which had copied English peacekeeping techniques without those cautions. And, instead of reference to what might be "allowed by law," the second amendment contains a prohibition against any infringement. It's sometimes pointed out that the debates during the Constitutional Convention and in the First Congress do not contain arguments about an individual right for citizens to be armed. They do not because there was no disagreement. Both Federalists and anti-Federalists, in ample testimony elsewhere, proclaimed this as a right of citizenship.

What the deliberations do contain is concern about the military power of the new Federal Government. Professional armies, unlike militia, were regarded as dangerous to liberty. Yet, the new Government was to have a standing army and to control State militia. Every State bill of rights had copied an English prohibition against a standing army in time of peace without the consent of the legislature, and five of the eight States that proposed specific amendments urged the Federal Government to include a similar prohibition.

It must have seemed more tactful to Congress to emphasize the need for a militia rather than to express distrust of an army. The second amendment, therefore, proclaimed that the militia was the necessary security of a free State. What sort of militia did they intend? There is abundant evidence that the intended militia was a general one. A select militia, like today's National Guard, was regarded as little better than an army, and I understand that members of the National Guard now have to be members of the Army.

Was the amendment intended to give militia powers back to the States? Not only does it fail to do so, but not one of the 97 amendments proposed by State ratifying conventions asked for any return of control. Moreover, the Senate specifically denied a Member's proposal to return militia powers to the States.

Of great importance for an accurate understanding of the Senate's intention at the time is its rejection of another amendment. Like the drafters of the English right, the Senators rejected a motion to add "for the common defense" after "to keep and bear arms." The American Bill of Rights recognized the individual's right to have weapons for his own defense, rather than for collective defense.

Newspapers of the time provide additional support that this was the intention. The Philadelphia Evening Gazette in an article reprinted in New York and Boston explained the aim of the second amendment in this way: "As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed . . . in their right to keep and bear their private arms." Nothing is said about the militia.

Where does this leave us? As an English attorney said in the 19th century of the right to assemble, apparently, and I'm quoting, "our ancestors were pleased rather to enjoy a condition of perilous


freedom than a state of abject tranquillity in the condition of slaves." Are we? Should the second amendment be permitted to go the way of the English right to be armed, as a dangerous relic of another era?

In fact, of course, it can't be legislated out of existence. But while it's unconstitutional to legislate a right out of existence, this particular right is threatened with misinterpretation to the point of meaninglessness. Granted, this is a far easier method than amendment, but it is also the way of danger. For to ignore all evidence of the meaning and intent of one of those rights included in the Bill of Rights is to create the most dangerous sort of precedent, one whose consequences could flow far beyond this one issue and endanger the fabric of our liberty.

Should the second amendment be altered or eliminated through amendment? Before that's considered, it's imperative to grant the founders of our Constitution, whose wisdom in so much else has borne the test of time, the courtesy of considering why they included this right. Are armies still a threat to a 20th century world? Should Government have a monopoly of force? Are individuals still in need of personal weapons for their self-defense? I am not an advocate but an historian, and I ask merely for a decent respect for the past. We are not forced into lockstep with our forefathers, but we owe them our considered attention before we disregard a right they felt it imperative to bestow upon us.

Thank you.

[The prepared statement of Ms. Malcolm follows:]

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