http://www.senate.gov/~judiciary/malcolm.htm

Joyce Lee Malcolm

During the first public discussion of articles that would become our bill of rights, the Philadelphia Federal Gazette and Philadelphia Evening Post explained to readers the intent of the future Second Amendment: “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.”1 There was no doubt then, or for decades to come, that the Second Amendment protected private arms and embodied an individual right. It was a right that did double duty, however: the individual could protect himself and the liberties of his fellow-citizens. This had been one of the colonists’ rights as Englishmen, and it was one that, as Americans, they would strengthen and broaden.

Since medieval times ordinary Englishmen had been legally required to keep weapons for individual defence and to fulfill their peacekeeping duties. In the late seventeenth century this duty became a right. Englishmen had become thoroughly alarmed when Charles II and James II began to disarm their political opponents and to increase the size of their army. James’s flight in 1688 provided an opportunity to shore up and expand popular rights before installing a new monarch. The resulting Bill of Rights included the guarantee that “the Subjects, which are Protestants, may have Armes for their defence Suitable to their Condition and as allowed by Law.” Although this language left room for restrictions to be imposed, legal experts and court decisions in the years that followed make it crystal clear that the typical Englishmen had a right to keep firearms. Writing just prior to the American Revolution, William Blackstone saw this as a right designed to “protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.” In language the Philadelphia Federal Gazette was to echo, he also argued that their private weapons would enable the people “to restrain the violence of oppression.” In 1780 London’s legal adviser explained:

The right of his majesty’s Protestant subjects, to have arms for their own defence, and to use them for lawful purposes, is most clear and undeniable…And that right, which every Protestant most unquestionably possesses, individually, may, and in many cases must, be exercised collectively…. In 1819, Justice Bayley made the same point. “But are arms suitable to the condition of people in the ordinary class of life, and are they allowed by law?” he asked, and answered, “a man has a clear right to arms to protect himself in his house. A man has a clear right to protect himself when he is going singly or in a small party upon the road where he is travelling or going for the ordinary purposes of business.”

Americans inherited an individual right to be armed, but it is possible that they chose to narrow, or waive, that right in the Bill of Rights. Examination of the drafting of the Second Amendment, however, makes Congress’s intention to protect an individual right apparent. In keeping with colonial practice English restrictions based on religion were swept aside and no provision was included for what was “suitable” to a person’s “condition” or “allowed by law.” The American amendment, however, was prefaced by the assertion that “a well-regulated militia” is “necessary to the security of a free State.” Was it meant, therefore, only to ensure the right of militia members to be armed? If so it is hard to understand why a House committee removed the stipulation that the militia be described as “well-armed” or why senators rejected a proposal to add to the words “to keep and bear arms” the phrase “for their common defence.” Although militia service was expected of men of a certain age, and a militia was regarded as safer for a republic than a professional army, senators did not want to limit the possession of weapons to “common defence.” English drafters had emphatically rejected the same phrase. It is the right of “the people” to be armed Congress sought to protect. It has also been argued that the amendment was meant to return some power over the militia to the states. If so it signally fails to do that. What does it do? It states that a militia is “necessary to the security of a free State.” And it proclaims that the right of the people to keep and bear arms shall not be infringed.

As William Rawle, George Washington’s candidate for the nation’s first attorney general saw it, the protection was a blanket one. “The prohibition,” he wrote, “is general.”

No clause in the constitution could by any 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 pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.

There is overwhelming evidence that the Second Amendment was intended to protect an individual right. It is time to concede that truth. The alternative, to wilfully misread a constitutional guarantee one finds inconvenient, is an ominous precedent. It is a quicker means of change than amendment, but a tactic that endangers all our rights. As Justice Benjamin Cardozo wrote:

The great ideals of liberty and equality are preserved against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, the scorn and derision of those who have no patience with general principles, by enshrining them in constitutions, and consecrating to the task of their protection a body of defenders. The members of this body are pledged to be among those defenders.