History of the 2nd Amendment of the Constitution - Research Paper Example

?Harris Kamran Law American Legal History 9 July History of The 2nd Amendment of The Constitution Ever since its ratification, the U.S. Constitution has been subjected to tremendous debate and research, and numerous analyses have been carried out to determine the meaning and context of the different statutes and laws established therein. It is no wonder that different times have seen different interpretations of the statutes of the constitution in accordance with the needs and cognizance of the ruling class, and to a lesser extent, the citizens of the United States. What the founders of the nation meant by those statues, for the most part, has been lost to the numerous changes in the application of the Constitution. The text that is written, and the effects of it on the general public, can be so different from each other sometimes that leaves one wondering if indeed the Constitution itself had been followed. This is not only true for the Constitution, but for all forms of Law, be they judiciary, civil, or criminal. To some extent, it is explainable and even expected; given the rate at which the society is developing, and the sophistication and complexity that it is bringing with itself in every field and sector, it is imperative that changes in the context of established laws would take place. It is legal too, as long as such changes do not repeal the said laws in their entirety. Perhaps the article of law from the Constitution that has been the subject of most controversies, and is, paradoxically the most under-researched and less studied is the 2nd Amendment (Subcommittee on the Constitution). And perhaps it deals with the most controversial of the topics; the bearing of arms, as regards to the current state of unrest and rampant threats of terrorism all over the nation. Hence, one can safely assume that what this amendment stands for today might not have been what it was aimed for when it was drafted, or even why the need to draft such a bill came into existence to begin with. These issues require an in-depth study of the amendment; what is most important in this case is the history of the 2nd amendment rather than its present form or its present context. This is because through the examination and understanding of the history o f this amendment can we hope to unearth its true meaning, context, and need for enactment, which will point the way to its proper application today. This in itself is important because there has been much debate over the meaning of the exact wordings of this amendment, which have caused a great deal of concern and argument in the recent times (U.S. Constitution Online). This has led to discrepancies in the court decisions among the different states and different courts of the country. Maybe by studying the history of the amendment, it can be hoped to draft a unified meaning to this pertinent amendment with the aim of bringing harmony and unity to the court decisions and among the legal bodies, scholars, experts, and critics dealing with this amendment. This paper aims at discussing the history o f the 2nd amendment of the U.S. Constitution, bringing to light the many aspects of its blurred history, comparing it with the present day version of the different terms used in this amendment, and trying to established a set meaning to the amendment itself. The basic question to be answered would be: what the writers of the Constitution meant when they wrote the 2nd amendment. As will be seen from the study in the subsequent pages, there are quite a number of shades to its history, many of them quite controversial. We will begin by stating the 2nd amendment in its current form: “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.” (U.S. Constitution Online). It is beneficial for the study to break the statement of the amendment into its three constituent parts, and to study the history of each phrase in order to understand the true meaning of the amendment as a whole. Let us begin by dissecting the phrase “being necessary to the security of a free state” (Subcommittee on The Constitution). A basic point that has to be kept in mind while studying the amendment and especially this phrase is the historical time period in which this phrase was drafted, and more importantly, the reasons, which have their roots in a period preceding that, which led to the inclusion of this phrase in the amendment. The history of this issue goes all the way back to the 872 AD, in the time of Alfred the Great (Subcommittee on the Constitution). At that time, and all through the centuries afterwards, the communities were divided into small monarchies, states, principalities, estates, and other small gathering of people on divided lands. Thus the threat of attack and subjugation was always hanging in the air, and it was a basic necessity of the time to protect the borders against enemies at all times and with all available resources. These resources included, but were not limited to, the manpower and the arms and weapons of the time. In fact, it was expected of every able individual to serve for defense; no other occupation was deemed as important or as high-ranking. Given the importance of this aspect of community life, it is no wonder that this topic became a part of the law, so that by law the citizens of the municipalities were required to fight in defense, and to serve as the modern-day concept of soldiers (Subcommittee on the Constitution). This held true even till the 17th and 18th centuries during which the bills and articles of the constitution were drafted (Subcommittee on the Constitution). The United States then was quite different from the generally unified group of states that one observes today. The different states would still fight with each other, both politically and with arms. So it was paramount that a clause concerning the defense of these warring states should be among the first clauses to be incorporated in the constitution. There was also a need felt for the overall protection of the citizens of the new-found United States against foreign threats and attacks. This clause enveloped the defense of the country by law. If viewed in retrospect, it was worthwhile to include it as today it forms the basis of bodies such as the National Guard (Subcommittee on the Constitution). The National Guard will be further discussed later in the paper in context with another phrase of the amendment. However, a very important factor that must needs to be considered here is that the protection of the State as is mentioned in the amendment does not only mean protection against foreign threat, but also the protection of the State from itself (Subcommittee on the Constitution). This concept is rooted in the perspective of the leaders of that time, and has its ramifications on the empowerment of the general public. The type of leadership at the time was of the monarch variety; democracy as is seen today was non-existent at that era. Hence, there was a rampant occurrence or chance in any case of the insurgence of tyranny by the monarchs. It was imperative, then, that the citizens of the estates should be given rights by law and protection of those rights by the constitution to empower them to rise against tyranny and protect their liberty (U.S. Constitution Online). This applied ot the citizens as one body, and not to specific groups or classes of citizens (Subcommittee on the Constitution). This concept will be explored in detail later in the paper. Nevertheless, this clause, hence, protected the state from within and without, a concept often ignored and even disdained in the present times. What must be understood is that the protection of liberty at the individual and societal level is, and was, at the heart of this amendment and its every phrase. This liberty, especially at that time, came most importantly in the form of personal empowerment and liberty in terms of bearing arms and the ability to defend oneself against oppression. The roots of this concept can be traced back to the industry of slavery (Subcommittee on the Constitution), addressing both the fear of slavery itself, and the fear of oppression or threat by the freed slaves (Bogus). The same concept of liberty, and the need to protect it, was the soul of the new world (Subcommittee on the Constitution); the founders of this nation were adamant to provide unbridled and unprecedented freedom, in all its imaginable forms, to all those recognized as the citizens of the United States (Subcommittee on the Constitution). This was the reason they fought so much over the inclusion of this amendment in the constitution, and made sure to protect it by passing the Fourth Amendment. The same concept of personal liberty runs through all the four phrases of the amendment, so it must be borne in mind when studying them separately. Let us now consider another phrase of the amendment: “the right of the people to keep and bear Arms” (Subcommittee on The Constitution). This phrase is the heart of the amendment. It is also the cause of all the debate revolving around this statute. And interestingly, the context of this phrase has underwent a great evolution since its conception, so that now there is almost a complete reversal of its application in legal matters. In today’s society, bearing arms is often considered to be violent and a cause of concern and threat to the peace and stability of the society, although this very clause was drafted in order to maintain the peace and stability of the society (Subcommittee on the Constitution); a paradox that has been the main cause of research and analysis of the 2nd amendment. Let us examine why it has underwent such a drastic change in its meaning, and why was it such a necessary clause in the days when it was drafted. Liberty has always been associated with the power to protect oneself against internal and external threats, as has already been mentioned. The most basic and potent form of defense, then, is of course the bearing of weapons. This takes defense in its most literal meaning, and when it was conceived, this meaning meant the difference between life and death. Today, when there are many forms of threats that can inflict an individual, the bearing of arms has lost its significance. Therefore, this very act has often become the basis of many arrests and convictions in the country, without even the opportunity of a trial or parole (Subcommittee on the Constitution). The bearing of arms was considered to be the basic right of the people; indeed, it was seen as the hallmark of a free society, together, later, with the advent of the free press and media (Subcommittee on the Constitution). Hence, a need was felt to protect this basic human right, which was considered to be natural as opposed to other legal or technical rights granted by the Constitution (Subcommittee on the Constitution). In the 14th, 15th, and 16th centuries, it was viewed as more than just the right of the people; it was a requirement by the state and an obligation of the citizens (Subcommittee on the Constitution). This may come as a surprise today, however, if the historical context and the customs of that era are kept in mind, it becomes evident that it was a state necessity. There was no concept of a specialized police force or army, or any form of organization of soldiers for the defense of the state (Subcommittee on the Constitution). The protection of the ruling class and the masses depended on the ability of the individuals to protect themselves as best they could, and so indirectly defend the government. Hence, at some point it even became a state order to practice shooting and using weapons, and bringing the game, if there was any, to the church on Sundays (Subcommittee on the Constitution). It was an obligation of all the able men and boys to keep, at all times, with themselves a supply of guns and ammunition (U.S. Constitution Online). This might seem like a state of war, but in reality it was meant to be a state of peace and a sign of a free, thriving society. This is because it denoted the sense of freedom among the people, and a guarantee that the people would be able to rise against any form of tyranny if the need arose (U.S. Constitution Online). After all, as was pointed out numerous times by the federalists during the struggle to ratify the Constitution, there is no freedom if the citizens are unable to fight against tyranny (Subcommittee on the Constitution). What should be noted here is that only the free people were addressed in this clause, the slaves were kept at bay. This was especially true in the Southern states where the enterprise of slavery was still thriving, and the states wanted a special protection against any slave uprising (Bogus). Had the bonded men been armed, it would have defeated the whole purpose of bearing arms for the establishment of peace, security and stability. Such ocnepts, though alien in today’s society, were the bedrock of any legislation that was drafted in the preceding centuries, hence, they should be considered in the fullest. As the weapons developed and became more potent, the colonies expanded, and the insecurities of the ruling class grew, there arose a trend to pose certain limitations on the bearing, carrying, and usage of arms, so that certain rules and regulations were laid down and the freedom of this right in its entirety was jeopardized (Subcommittee on the Constitution). This held true especially in the case of the Militia Act of 1662 under James II (Subcommittee on the Constitution). The Act, which gave directions “to search for and seize all arms in the custody or possession of any person or persons whom the said lieutenants or any two or more of their deputies shall judge dangerous to the peace of the kingdom” (Subcommittee on the Constitution) was a clear attempt by the monarch to repeal the right of the citizens to this act of freedom in order to strengthen his personal defenses against threats from within this land. Many other kings and rulers tried to enact such rulings against the public display of arms, or the possession of certain arms under the reign of certain kings (U.S. Constitution Online); such attempts, however, proved, for the most part, to be futile (U.S. Constitution Online). This was owed much to the public disdain of such laws, and to the powerful opposition to the ruling classes of the competitions for the throne. If one would try to nullify the right, the other would support it all the more vehemently until he got the power, then it would be back to the seizure of all the arms possessed by certain sects of the populace, especially the Protestants (Subcommittee on the Constitution). Such laws were not popular, and soon were overturned, so that after the end of James’ reign in 1668, the passing of the Bill of Rights stated that “it is necessary for the public Safety that the Subjects, which are Protestants, should provide and keep arms for the common defense; And that the Arms which have been seized, and taken from them, be restored” (Subcommittee on the Constitution). Perhaps the best example of such a revoke of oppressive laws by the states is that of a relatively recent case of Supreme Court, Nunn v. State, 1 Ga. 243, 251 (1846). It was a response of the Georgia Supreme Court against the banning of the possessions of guns by the state of Georgia (Subcommittee on the Constitution). The response of the Court summarizes the true form of the pertinent phrase of the 2nd amendment in its purest form and in the best way: “the right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not merely such as are used by the militia, shall not be infringed, curtailed, or broken in on, in the slightest degree; and all this for the important end to be attained: the rearing up and qualifying of a well regulated militia, so vitally necessary to the security of a free state” (Subcommittee on the Constitution). Even today, in the legal files at least, this clause is still perceived in the same spirit. Let us now turn our attention to another phrase of the 2nd amendment, “shall not be infringed” (U.S. Constitution Online). The infringement of this right holds special importance in two regards; infringement by the Parliament, and infringement by the State itself. It is clear by the examples which have already been discussed with regard to the bearing of arms and weapons, that there have been many attempts by the leaders, albeit due to different reasons, to overrule the right of the people to bear arms. Oftentimes, this right has been portrayed as a crime and legal action been taken against the armed citizens. Hence, it is evident that the formers of the Constitution aimed at imparting protection to the citizens by legally protecting their right to bear arms, hence, the inclusion and the specific mention of this phrase that such a right cannot be legally infringed. There is, however, a more interesting aspect to this clause, which shall now be discussed. There is a demarcation between the laws binding on the Federal government and the State. Oftentimes, the State laws are in contradiction to the Federal Laws, which are viewed as the laws directly effecting the individual citizens. Furthermore, the State laws govern the working of the State, and only involve the State as an entity and have no concern with the individual laws or rights. Once this has been established, let us examine an example in which the State tried to overrule the Bill of Rights in the spirit that the Bill concerned only with the State and not with individual citizens. In the United States v. Cruikshank, 92 U.S. 542 (1876), a group of individuals harassed a gathering of Black citizens who happened to be armed (Subcommittee on the Constitution). The State maintained that the Black citizens could not be pardoned as “the right “of bearing arms for a lawful purpose” is “not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence” (Subcommittee on the Constitution). This reasoning, however, can be challenged. A State cannot infringe a State law; it is like a law in the Federal Constitution going against itself. In light of this, it can be wondered why then, this clause would be incorporated in State constitutions, as it has been (Subcommittee on the Constitution). This fact alone is sufficient to prove that this law was not meant to serve as a State law, but as an individual right of the citizens (Subcommittee on the Constitution), the protection of which was the responsibility of the Federal and State authorities. The individuality of the law is another great debate that needs to be reviewed in order to fully understand the meaning of the 2nd amendment. For that, let us consider the final phrase of the amendment: “A well regulated Militia” (U.S. Constitution Online). In this phrase, the term Militia needs special attention because it has undergone a huge change in its meaning from the time it was included in the amendment. Today, it might be thought to refer to the Army, or more precisely, the National Guard (Subcommittee on the Constitution), however, it was initially used for the entire free populace that had the ability to bear arms and fight for the country (Subcommittee on the Constitution). Indeed, when it was required to refer to a select group of specialized soldiers and to distinguish them from the general public, terms such as “training bands” and “select militia” were used in the past (Subcommittee on the Constitution). This further strengthens the argument that the 2nd amendment was meant for the masses rather than the State or a specialized branch of peace-keepers, and it should be viewed in the same light today. Works Cited “The United States Constitution.” U.S. Constitution Online, n.d. Web. 9 Jul. 2011. “Constitutional Topic: The 2nd Amendment.” U.S. Constitution Online, n.d. Web. 9 Jul. 2011 Bogus, Carl T. “The Hidden History of The Second Amendment.” Violence Police Center, 1998. Web. 9 Jul. 2011 “The Right to Keep and Bear Arms.” Subcommittee on The Constitution, 1982. Web. 9 Jul. 2011 “United States Constitution.” AmeriRoots, 22 Mar. 2003. Web. 9 Jul. 2011. Read More