HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON CRIME,
COMMITTEE ON THE JUDICIARY,
Washington, DC.
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STATEMENT OF JOYCE LEE MALCOLM, CHAIR,
DEPARTMENT OF HISTORY, BENTLEY COLLEGE, WALTHAM, MA
Ms. MALCOLM. I want to thank you, Mr.
Chairman and members of the committee, for
inviting me to appear here this morning.
This is an unusual honor for an historian
of 17th and 18th century history and
testament to the committee's real concern
to understand the second amendment, the
most controversial and least understood of
our constitutional rights.
Some 10 years ago, a committee of attorneys
was charged to report on the meaning of the
second amendment to the American Bar
Association. After an analysis, they threw
up their hands and concluded, "It is
doubtful that the Founding Fathers had any
intent in mind with regard to this
amendment." Happily, neither this
committee, nor most of us, would regard the
Founding Fathers as so frivolous, or our
own understanding so weak, as this
assessment implies. But few have time for
the original research necessary to get to
the truth, for while much as been written
about gun control until recently there was
very little dispassionate scholarship.
Over the past 10 years, I have studied the
history of this right from its English
origins to its incorporation in the
American Constitution. My intent has not
been to add fuel to a sufficiently fiery
debate, but to shed light on its
development and, above all, on its meaning.
My findings appear in a book, To Keep
and Bear Arms that was published last
year by Harvard University Press. And I
should like to tell you briefly what I
found.
I found that, until our own century, there
was agreement that the second amendment
protected an individual right to be armed
and that it was a major cornerstone of
freedom. The English historian, Thomas
Macaulay, dubbed this "the security without
which every other is insufficient," and the
great American Justice, Joseph Story,
proclaimed it "the palladium of the
liberties of a republic." It was not until
a movement began intent on curbing
individual ownership of firearms that new
interpretations emerged which denied that
an individual right was ever intended.
I found that the right for individuals to
be armed did not spring newborn from the
perilous circumstances of the American
frontier. Nor it was it attributable to a
love of hunting. It was a right the
colonists brought from England; its
enjoyment was guaranteed in their colonial
charters. From early in the Middle Ages,
what Englishmen called "time out of mind"
they had been required to be armed to
protect themselves and their neighbors.
They had to take turns standing watch, to
raise a "hue and cry" when crimes occurred,
and then join a posse to pursue the
culprits. They were also expected to
participate in a militia to defend
their homes and land. This system of
citizen policing was a cheap method of
keeping order, but it required trust, trust
in the people.
One result of the crucial civil wars
between King and Parliament in the 17th
century was the transformation of this duty
to be armed into a right. During the wars,
both sides tried to arm their friends and
disarm their enemies, as you would expect,
and pru-
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dent individuals stockpiled weapons.
Once the monarchy was restored in 1660, the
new King and aristocracy adopted a series
of measures to disarm their political
opponents and restrict public access to
firearms. But when the next King, James II,
used these measures to disarm loyal
law-abiding Englishmen and expanded his
army and threatened English liberty and
religion, even his supporters became deeply
alarmed. He was deposed in what Englishmen
have ever since called their "Glorious
Revolution," and his daughter, Mary, and
son-in-law, William of Orange, succeeded
him. Before they ascended the throne,
however, members of the English Convention
Parliament were careful to draw up a
Declaration of Rights to reaffirm the
rights of the people. It became the model
for our own Bill of Rights just a century
later.
Among the rights it listed was the right
for Protestant Englishmen, who were then
some 95 percent of the population, and I'm
quoting, "to have arms for their defence,
suitable to their condition and as allowed
by law." The final clause, "suitable to
their condition and as allowed by law,"
might have been employed to narrow the
right, but when you look at the court
records and statements, you find that it
was not. Up until 1920, Englishmen had a
right to have weapons for their personal
defense.
The English right to have weapons was
exclusively an individual right. Its
drafters emphatically rejected language
that would have given the people only the
right. to have arms "for their common
defence," rather than "for their defence."
The militia was not mentioned.
Just prior to the American Revolution, the
great English jurist, William Blackstone,
added a second dimension to the right. He
saw the people's right to be armed as their
protection when, in his words, "the
sanctions of society and laws are found
insufficient to restrain the violence of
oppression." It would enable them to
vindicate their other rights, should these
be threatened. And it was this right with
its dual purpose, individual protection and
the protection of liberty, that the
American colonists inherited and meant to
perpetuate.
That was a quick tour through English
history. Now for the second amendment.
Modern critics, ignorant of the historical
tradition behind the second amendment, have
derived an astonishing variety of meanings
from its single sentence. They argue the
purpose was to preserve State powers over
State militia; that it merely protects the
right of members of a militia— the
National Guard of today; that the language
"the right of the people" granted no one
person a right to own a weapon. This last
contention, of course, founders because it
cannot be reasonably applied to the 1st,
4th, 9th, and 10th amendments, where
reference is also made to the right of "the
people."
As was the case with the English right, the
second amendment was meant to accomplish
two distinct goals, each crucial to the
maintenance of liberty. It was meant to
guarantee the individual's right to have
weapons for self- defense, and these
privately-owned arms were meant to serve
the larger purpose Blackstone described, to
give, the people the means to vindicate
their liberties in extremis.
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The American right, of course, is not a
duplicate of the English right. In fact
it's far broader, having no religious
restrictions or reference to class. This
was in keeping with colonial practice which
had copied English peacekeeping techniques
without those cautions.
And, instead of reference to what
might be "allowed by law," the second
amendment contains a prohibition against
any infringement. It's sometimes pointed
out that the debates during the
Constitutional Convention and in the First
Congress do not contain arguments about an
individual right for citizens to be armed.
They do not because there was no
disagreement. Both Federalists and
anti-Federalists, in ample testimony
elsewhere, proclaimed this as a right of
citizenship.
What the deliberations do contain is
concern about the military power of the new
Federal Government. Professional armies,
unlike militia, were regarded as dangerous
to liberty. Yet, the new Government was to
have a standing army and to control State
militia. Every State bill of rights had
copied an English prohibition against a
standing army in time of peace without the
consent of the legislature, and five of the
eight States that proposed specific
amendments urged the Federal Government to
include a similar prohibition.
It must have seemed more tactful to
Congress to emphasize the need for a
militia rather than to express distrust of
an army. The second amendment, therefore,
proclaimed that the militia was the
necessary security of a free State. What
sort of militia did they intend? There is
abundant evidence that the intended militia
was a general one. A select militia, like
today's National Guard, was regarded as
little better than an army, and I
understand that members of the National
Guard now have to be members of the Army.
Was the amendment intended to give militia
powers back to the States? Not only does it
fail to do so, but not one of the 97
amendments proposed by State ratifying
conventions asked for any return of
control. Moreover, the Senate specifically
denied a Member's proposal to return
militia powers to the States.
Of great importance for an accurate
understanding of the Senate's intention at
the time is its rejection of another
amendment. Like the drafters of the English
right, the Senators rejected a motion to
add "for the common defense" after "to keep
and bear arms." The American Bill of Rights
recognized the individual's right to have
weapons for his own defense, rather than
for collective defense.
Newspapers of the time provide additional
support that this was the intention. The
Philadelphia Evening Gazette in an article
reprinted in New York and Boston explained
the aim of the second amendment in this
way: "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." Nothing is said about the militia.
Where does this leave us? As an
English attorney said in the 19th century
of the right to assemble, apparently, and
I'm quoting, "our ancestors were pleased
rather to enjoy a condition of perilous
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freedom than a state of abject tranquillity
in the condition of slaves." Are we? Should
the second amendment be permitted to go the
way of the English right to be armed, as a
dangerous relic of another era?
In fact, of course, it can't be legislated
out of existence. But while it's
unconstitutional to legislate a right out
of existence, this particular right is
threatened with misinterpretation to the
point of meaninglessness. Granted, this is
a far easier method than amendment, but it
is also the way of danger. For to ignore
all evidence of the meaning and intent of
one of those rights included in the Bill of
Rights is to create the most dangerous sort
of precedent, one whose consequences could
flow far beyond this one issue and endanger
the fabric of our liberty.
Should the second amendment be altered or
eliminated through amendment? Before that's
considered, it's imperative to grant the
founders of our Constitution, whose wisdom
in so much else has borne the test of time,
the courtesy of considering why they
included this right. Are armies still a
threat to a 20th century world? Should
Government have a monopoly of force? Are
individuals still in need of personal
weapons for their self-defense? I am not an
advocate but an historian, and I ask merely
for a decent respect for the past. We are
not forced into lockstep with our
forefathers, but we owe them our considered
attention before we disregard a right they
felt it imperative to bestow upon us.