The Second Amendment – Then and Now, Here and There

By George Anastaplo

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.

It should be instructive (as well as reassuring) to be reminded, from time to time, of how bills of rights were regarded by the Framers of the Constitution of 1787 and their most thoughtful champions. The absence of a bill of rights in the original Constitution disturbed some citizens during the Ratification Campaign of 1787-1788. Attempts were made to reassure such critics with reminders that the principal guarantees they were demanding were already generally recognized for and by the People of the United States, whether or not reaffirmed in any new document.

The constitutional assumptions drawn on by such assurances are reflected in the language of the Ninth Amendment (the next-to-last article provided thereafter in the Bill of Rights of 1791): “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Such constitutional assumptions are evident as well in the Declaration of Independence of 1776, where longstanding guarantees and rights were repeatedly drawn on in condemning what the English Government of the day had been doing to their North American Colonies. But however misguided, if not even tyrannical, the English Government might have seemed at times, it was evident that various fundamental rights of the People (rights recognized over centuries) were firmly grounded in the history and political character of the English-speaking-peoples. Thus, Americans could acknowledge, once the passions of war had subsided, that their “cousins” in England were generally as free, politically and legally, as they themselves were in North America.

It can be instructive, therefore, to notice any major deviations in American constitutional doctrine today from the current English understanding of comparable matters. One obvious departure is with respect to inherited privileges, but even here the English are steadily moving closer to the American orientation, as may be seen in what has happened during the past century to their House of Lords. Another departure can be noticed with respect to established religious prerogatives, something recognized in our First Amendment restriction upon “an establishment of religion.”

Otherwise, the English reading of longstanding constitutional privileges is generally like ours.  The most truly troubling exception may be with respect to the Second Amendment assurance about “the right of the people to keep and bear Arms”—troubling not because of the language of that provision, but rather because of how it has come to be misread by some among us.  After all, there had been in England, well before 1776, suspicions about any faction (usually grounded in religious principles) sometimes being more privileged than others with respect to the right to possess weapons.  (This injustice is noticed in the English Bill of Rights of 1689.)  But the ancestral “right of [all] the people to keep and bear Arms” has never been understood to have in England the remarkable scope now claimed for it in the United States.  That is, whatever may now be felt by some among us about such a privilege in the United States, it is hardly traditional among the English-speaking peoples that it should be completely independent of anything like the substantial supervision once provided by a “well regulated Militia.”

American visitors do recognize that they move in England among a people who are generally free as their own. English domestic problems tend to be similar to ours, including with respect to race relations. The deference still paid there to royalty and to the nobility can seem foreign to American tastes, but it does not tend to be generally regarded by us as corrupting everyday life.  Besides, even more dramatic deference may sometimes be observed in the United States– as in the almost obsessive interest in whoever happens to be either the President or the celebrity of the moment.

However all this may be, the American visitor to England simply does not encounter there the amount of, and the determined campaigns for, unregulated private gun ownership that we have had to become accustomed to in the United States. Nor is there, of course, the horrendous murder rate we are also accustomed to, a rate that undermines both security and freedom.

Social conditions and chance historical developments may help account for such differences. But English friends of the United States are hardly likely to regard as either prudent or persuasive the insistence that we hear among us (even from distinguished jurists)—the curious insistence that the right of citizens to possess, mostly on their own terms, a wide variety of dangerous weapons is grounded in and guaranteed by whatever ancient right the English-speaking peoples may properly have “to keep and bear Arms.”

These remarks were prepared by Professor Anastaplo for his Constitutional Law Seminar at the Loyola University Chicago School of Law, November 2, 2009.  This was in the course of an examination of District of Columbia v. Heller (United Sates Supreme Court, 2008). He has discussed the Second Amendment at greater length in two of his books: The American Moralist: On Law. Ethics, and Government (Ohio University Press, 1992), p. 367; The Amendments to the Constitution: a Commentary (Johns Hopkins University Press, 1995), p. 59.  See, also, Anastaplo, “’McCarthyism,’the Cold War, and Their Aftermath,” 43 South Dakota Law Review 103, 128 (1998); The Constitutionalist: Notes on the First Amendment (Southern Methodist University Press, 1971; Lexington Books, 2005), p. 820.

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