Recently published, in the Federalist Society Review, Stephen P. Halbrook (Independence Institute): To Bear Arms for Self-Defense: A “Right of the People” or a Privilege of the Few? (part 1 and part 2). From the introduction:
The Founders who drafted the Bill of Rights in 1789 recalled the British efforts to confiscate private firearms from the American colonists as well as the use of such firearms to start and help win the American Revolution. They were also well aware that the same firearms were used for protection against persons and wild animals that would do harm. They would thus enshrine in the Second Amendment the right to bear arms.
In this article, I address the extent to which the Second Amendment guarantee that “the right of the people to . . . bear arms, shall not be infringed” protects the liberty to carry firearms outside the home for self-defense or other lawful purposes.
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The right to bear arms has deep roots in America’s history and tradition. It was considered a right of Englishmen, and the American Founders extended its scope, as they did with other rights recognized in the state and federal constitutions. In the antebellum period, going armed was no offense unless it was done in a manner and with the intent to terrorize others. State laws prohibiting the carrying of concealed weapons were upheld on the basis that open carry was lawful. Slaves were generally prohibited from having arms altogether, and in the Southern states, free persons of color were prohibited from keeping or carrying arms unless they had a license issued at the discretion of the government. After the Civil War, the Fourteenth Amendment sought to extend the right to bear arms and other fundamental rights to all Americans.
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This paper is divided into two parts. Part One begins with an analysis of the text of the Second Amendment. …
Second, the English origins of the right are traced. The Statute of Northampton of 1328, which was construed in a 1686 precedent as prohibiting one from going armed in a manner to terrify one’s fellow subjects, is today advanced by courts in these minority jurisdictions as somehow overriding the right to bear arms. But the Declaration of Rights of 1689 recognized the right of Protestants to “have Arms for their Defence” as allowed by the common law. The Americans would expand on this and other rights of Englishmen.
Third, this paper analyzes the right to bear arms at the American Founding and in the early Republic…
Part Two of this paper … begins when slavery was abolished after the Civil War and the Southern states began enacting the black codes that applied discretionary licensing regimes to all African Americans. Congress sought to protect the right to bear arms for all through the Civil Rights and Freedmen’s Bureau Acts of 1866. The Fourteenth Amendment was proposed and ratified to protect the right to keep and bear arms from state violation, and the Civil Rights Act of 1871 provided for enforcement of the right. The courts responded with mixed results to carry bans that were enacted during Reconstruction and in the Jim Crow and Anti-Immigrant eras.
Posted at 6:02 AM