Customer Reviews

To Keep and Bear Arms: The Origins of an Anglo-American Right

5 star:		(7)
4 star:		(3)
3 star:		(0)
2 star:		(0)
1 star:		(0)

 

 

From T. Markus Funk, "Is the Second Amendment Really Such a Riddle? Tracing the Historical "Origins of an Anglo-American Right" 39 Howard Law Journal 411 (1995):

Few topics of contemporary social, moral, and political debate can provoke as much raw emotion and open hostility as the Second Amendment, particularly in relation to the topic of gun prohibition. This subject routinely causes many well-intentioned people of whatever view to give up all pretense of courtesy and reason in favor of ad hominem attacks on those with whom they disagree. Readers of history professor Joyce Lee Malcolm's To Keep and Bear Arms: The Origins of an Anglo-American Right will find these ugly by-products of the contemporary conflict refreshingly absent. Malcolm clearly keeps her distance from any broad normative judgments about the social utilities or costs of civilian firearms possession, offering instead a sober, scholarly, historical discussion of the Amendment's origins. Meticulously tracing the British history of regulations on firearms ownership from the Middle Ages on, she provides a detailed and illuminating history that includes the English Bill of Rights and, a century later, the American one. Because it is only in this historical context that the Second Amendment's meaning can be fully understood and appreciated, Malcolm's book is essential reading for anyone interested in this complex and controversial subject.

Professor Malcolm does a very thorough job of showing how the notion of a right to arms contained in the English Bill of Rights of 1689 (and which appeared in a broader form in the U.S. Bill of Rights) was developed during the English Civil War between King and Parliament, contrary to the claims of Parliament who described the right to arms as being one of their "ancient rights and liberties." Others who have examined this provision of the English Bill of Rights have sometimes let themselves be taken in by this high sounding language, but Professor Malcolm has been careful to look beneath the surface.

The last chapter of the book examines how this right ended up in the U.S. Bill of Rights. While necessarily shorter than my detailed study in _For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms_ (Praeger, 1994), it is still a fine telling of the process by which the Second Amendment was adopted.

Ms. Malcolm nicely lays out the history of the tension between English rulers and subjects over the control of weapons. She made me realize that the current dispute in this country over access to firearms has a long pedigree. Her depiction of the circumstances under which England, in 1689, declared the right to bear arms "true, ancient, and indubitable," when in fact it was none of those is particularly interesting. (See p. 115.) She provides evidence for her view that "it is particularly ironic that some modern American lawyers have misread the English right to have arms as merely a 'collective' right inextricably tied to the need for a militia" (p. 119) when by 1689 the opposite was true. I'm not a historian or a gun enthusiast, but I find all of this quite fascinating.

When the book turns to the Second Amendment to the United States Constitution, however, its energy seems to flag. I am sympathetic to the argument that the Second Amendment confers a right on "the people" respectively, i.e. as individuals, "to keep and bear Arms." But Malcolm's argument is undermined, however slightly, when she urges that "[s]ome" i.e., more than one, nascent American state constitutions "included a specific right for an individual to have firearms for his own defence" (p. 150), but quotes and cites, as best I can discern, only the Pennsylvania bill of rights in support (pp. 148, 149). Is there more than one, or not? Another apparent example of waning energy toward the end is the treatment of an argument that "like the Convention Parliament in 1689, the senators [debating drafts of the Second Amendment] rejected a motion to add 'for the common defense' after 'to keep and bear arms.' " (P. 161.) To me, that point seems crucial, but Malcolm does not explore it further, beyond providing a footnoted reference to another source.

Finally, some minor quibbles. Noting the author's regular use of English spelling, I thought she was English until I realized, on reading the penultimate page, that she is an American (p. 176). Perhaps Malcolm was reared and educated in England, but nevertheless her anglicizations are distracting and seem affected. It also seems affected to spell "dissension" archaically as "dissention" (p. 153), and to print "u" as "v" in quoted material, as in "Vs" (Us) (p. 41) or "vpon" (upon) (p. 59). If one is going to do that, why not also ask the typesetter to print quotations with the long "s" that looks similar to the lower-case "f"? (Actually, I wouldn't so much object to that, though it would also come across as affected: at least the long "s" is still an "s," though of archaic form, whereas a "v" is not a "u" at all.) These are, of course, trivial items, but when I encounter them, I think, "Come on, Harvard University Press copy-editors, get with it!"

After all the foregoing griping, it may appear that (1) I am a detail-obsessed curmudgeon of uncommon degree, and (2) I disliked the book. The first point may be true, but the second is not. I look forward to seeing how others eventually build on Malcolm's scholarship.

This is an intellectual treatment of a subject frequently dealt with only by emotion and politically correct positions. In a nutshell, sovereignty rests in the people and our Constitution. If we can't trust our citizenry with arms, how can we possibly trust them with the right to vote? We need to think hard before we casually let this fundamental right of a free people be taken away by those who would rule as elitists, or a modern day version of royalty.

A first class piece of work that should be included in the library of anyone seriously interested in the Second Amendment. The writing is lucid and graceful, the historical research is extensive and meticulous, and the presentation is balanced and scholarly.

The book is an easy read, yet has depth and excellent research. It records how the English of the Middle Ages had a duty imposed upon them by their rulers to be individually armed, and how they often found this irksome. It documents how this gradually evolved into an ambivalent English right.

As good history, this book is highly recommended. In addition it has a dimension for this reader, not envisaged by the author.

The English kings fearfully vacillated between requiring a duty that their subjects be armed to protect the crown, and trying to ensure that doing so could not threaten the crown, causing Kings to periodically try to disarm their subjects. The book traces how this evolved into a conditional right to bear arms that became recognized as the final bulwark against tyranny. The author shows how this right was taken to America and strengthened; finally, how this right has been teased away by successive British regimes frightened by the possibility of an angry population rebelling against abuses.

This book came out long before terrorism replaced communism as the new thing government wants us to fear. It is most interesting to compare with how Kings manipulated the population with such fears four hundred years ago.

Following the September 11 atrocity British and American rulers offered their people the insulting "explanation" that the alleged perpetrators "Hated our freedoms." Since then, those who rule us have been busily eroding our freedoms in small but frequent slices--allegedly to preserve them for us.

This work was written well before 9/11. Modern terrorism was clearly not on the author's mind. Joyce Malcolm starkly illustrates how, in the decades around the 1670s the English governments of the day frequently used fake and imagined foreign and domestic 'terrorists' -- the quaint terms used were different in those days,, but mean the same--to justify disarming their own population in order to gain greater control and to diminish the threat posed by resentment to heavy taxation and other government abuses.

It touches upon the well proven anomaly that armed civilian populations enjoy generally lower rates of crime and violence--contrary to the fear promoted by governments that private gun ownership encourages violent anarchy.

Of all our threats the most deadly be from those that presume to govern. They need a credible deterrent to abuse. Regimes need an incentive to behave, as much today as ever they did yesteryear. This book gives you the history that proves it.

However, whether you agree with this jaundiced viewpoint or not, this is interesting and well written history. The reviewer who complained that the author uses English spelling rather than American usage seems unaware that she uses many quotes from the archaic text of the period. 'Translating' that into modern verbiage would necessarily introduce a measure of subjective interpretation. I think she was right to leave that to the intelligent judgement of her readers.

It is important to realize that this book is not really about the 2nd Amendment. Instead, Malcolm seeks to chart the development of the English conception of a right to keep and bear arms, which clearly has influence upon the 2nd Amendment. The history of the English right is fascinating. It began as an onerous duty that many Englishmen resented and Malcolm traces the development of the right during the violent 17th century during which many Englishmen were disarmed as a means to stem any armed opposition. The right was created in 1689 as a means of ensuring that an armed citizenry would always be available to oppose a standing army.

I lack the background to critique Malcolm's English history, but there are a few areas where I think Malcolm runs into problems. One is interpretation. Malcolm stresses the change in the 1689 right from a right to bear arms "for their common defence" to "their defence," arguing that this shows a determined choice to abandon a collectivist right in favor of an individual right. I personally think this was more about simplifing language than a fundamental change in the right's conception. But, more importantly, I think this underscores the limitation of speaking about a right in individual versus collective terms. Here, Malcolm concludes that the English right was "individual" and then goes on to lay out all of the collective defence reasons that the right was necessary, i.e. a fear of Catholic plots and of standing armies.

2nd Amendment absolutists shouldn't see this book as their savior because, even if we accept Malcolm's conclusion that the 2nd Amendment was based upon the English conception, it still would not stop gun limitations, or bans, in the U.S. While Malcolm supplies a quote from William Rawle claiming that the 2nd Amendment limits the power of the states, constitutional practice holds otherwise. The 2nd Amendment only limits the federal government because the Supreme Court has not yet, and probably won't in the near future, incorporated it into the 14th Amendment. Moreover, Malcolm's final chapter underscores this fact because she lays out the reasons the 2nd Amendment was felt to be necessary, a fear of federal military dominance. The entire chapter is replet with references to the fear of a federal standing army and the need for states to maintain an armed citizenry. Therefore, the 2nd Amendment was necessary to remove the possibility that the Federal government would disarm the people.

My only other criticism is minor. Malcolm cites the position of the 2nd Amendment as 2nd as evidence of its importance. This a shockingly amateur mistake for a historian to make. The fact is that the 2nd amendment was originally the 4th one proposed on a list of 12, the first two failed to be ratified (though one was ratified 2 centuries later). Both of these where only technical changes rather than "rights" and the fact that the right to keep and bear arms is 2nd is more accidential than by design.

For the most part I thoroughly enjoyed this book and would strongly recomend it, though the limitations on Malcolm's dealing with American constitutionalism should not be forgotten. Readers will gain a much needed lesson in the the English tradition from which the American union developed.

Historical proof that the militia is all the people, and why that's so important to liberty. Proves how and why the Second Amendment is the cornerstone of our Bill Of Rights. Why the right to keep and bear arms is essential to maintaining a free nation. The first act of tyrants and those who commit genocide is always to disarm their victims, to minimize risk to themselves. Dr. Malcolm has written a great book that shows the historical basis of our liberty and why it's so important to keep this civil right intact.

Without the means of enforcing them, against criminals, or even against despotic government, there ARE NO "civil rights".

This book is a good overview of the history of the right to bear arms in England. It talks about how arms-bearing shifted from a feudal duty to a right of citizens protected by the Bill of Rights in 1688. It links the English experience with the American Second Amendment to argue that the right to keep and bear arms in the Second Amendment is an individual, personal right derived from the English right. It is well argued, but the author needs to make a distinction between an individual right and an auxiliary right. An auxiliary right protects the constitution by protecting the ability of the people to overawe their rulers. The Second was more of an auxiliary right than an individual right.

I like how the author explained exactly what he wanted to