To Keep and Bear Arms: The Origins of an Anglo-American Right is a very timely book and sheds much-needed light on an issue that has become highly emotional in contemporary America. Gun control has gained unprecedented favor in the United States, yet has also suffered a setback. In 1993, Congress passed the Brady Bill, which requires a five-day waiting period before the purchase of a handgun, during which time the seller must perform background checks on the buyer. The passage of the Brady Bill was widely seen as a defeat for the previously all-powerful National Rifle Association (NRA). In 1994, an anticrime bill that would have banned the manufacture and sale of nineteen types of assault weapons was approved by House and Senate negotiators and seemed certain to become law. It was derailed, however, by a procedural vote that blocked it from reaching the floor of the House. The derailment was attributed in part to successful lobbying by the NRA.
Gun control advocates say that measures such as the banning of assault weapons are necessary to curb violent crime. They point to the much lower levels of gun-related deaths in Europe, where few people have an automatic right to own a gun. Opponents argue vehemently that any form of gun control is an infringement of their Second Amendment rights and that in any case, gun control does nothing to reduce violent crime. Constitutional scholars are also divided. Some argue that the constitutional right to bear arms is a collective right, not an individual one, and was restricted in the Bill of Rights to the militia, which was the equivalent of the modern National Guard.
Into this heated debate steps Joyce Lee Malcolm, a professor of history who brings her deep knowledge of political, constitutional, and legal history to bear on the issue. Malcolm seeks to clarify what the Founding Fathers really meant by that brief statement that is now the center of controversy: “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.” Malcolm argues that the Second Amendment owes much of its origin to seventeenth century English law and that this legacy has been misunderstood and underestimated, partly because there has been little study of the English right to have firearms or the role played by firearms in English society. Much of Malcolm’s book therefore focuses on seventeenth century English history, as she traces the process by which the right of Englishmen to bear arms was established in the Bill of Rights in 1689.
For centuries, bearing arms had been an Englishman’s duty. All able-bodied men were expected to serve in militias that helped to keep the peace. This involved owning and using weapons. During the seventeenth century, this duty evolved into a right, because the citizenry became alarmed at the Crown’s persistent attempts to disarm them and to concentrate military power in a professional standing army or a select militia loyal to it. Malcolm traces this tension back at least to the English Civil War, which was precipitated in part by Charles I’s refusal to hand control of the militia over to Parliament. After the war, the public was convinced of the need to own weapons for their own defense against an intrusive government.
During the period of Oliver Cromwell’s rule, which followed the defeat of the Royalists and the subsequent execution of Charles I, Englishmen had to become accustomed to military rule and the presence of Cromwell’s New Model Army. For the first time in its history, England had a large standing army.
The New Model Army was succeeded by a restructured militia, whose main purpose was to disarm political enemies. Catholics, for example, were perceived as a threat to the realm and were subject to harassment and arrest. They had no right to bear firearms. Most ordinary citizens, however, retained their weapons.
By the time of the Restoration, Englishmen had developed a fear and dislike of standing armies, military rule, and government-controlled militias. Yet this did not stop Charles II, when the monarchy was restored in 1660, from amassing enormous power in the hands of the Crown. Within two years, with the help of the landed gentry, he had disarmed dissenters, harassed other opponents, established an unprecedentedly large and effective militia loyal to him, and laid the foundation of a permanent army. Veterans of Cromwell’s New Model Army had been deprived of their right to own weapons.
Parliament, which was controlled by the landed gentry, completed the job by passing the Game Act in 1671, which in effect abolished the right of the citizen to bear arms. The ostensible purpose of the Game Act was to protect game from the poor, but Malcolm points out that the underlying reason was the desire of the gentry to disarm their tenants and neighbors. This helped to ease the gentry’s fears about the...
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