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Title 2nd Amendment
Posted By DJB
English history and common law The concept of a universal militia originated in England.[4][5][6] The requirement that subjects keep and bear arms for military duty[7][8][9][10] dates back to at least the 12th century when King Henry II, in the Assize of Arms, obligated all freemen to bear arms for public defense. King Henry III required every subject between the ages of fifteen and fifty (including non-land owning subjects) to own a weapon other than a knife. The reason for such a requirement was that in the absence of a regular army and police force (which was not established until 1829), it was the duty of every man to keep watch and ward at night to capture and confront suspicious persons. Every subject had an obligation to protect the king’s peace and assist in the suppression of riots.[11] In 1215 A.D., King John of England was forced to sign Magna Carta, which guaranteed the right of free men to revolt if the King violated the law of the land. This included the right to petition the government to redress grievances and to bear arms against the government should their petitions be ignored.[12] In response to complaints that local people were reluctant to take up arms to enforce justice for strangers, The Statute of Winchester of 1285 (13 Edw. I) declared that each district or hundred would be held responsible for unsolved crimes. Each man was to keep arms to take part in the hue and cry when necessary.[13] The English Bill of Rights of 1689 granted Protestants the right to arms for self defense: "That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law."[14] This right was recognized prior to, and during, the Revolutionary War. For instance, in 1780 after some riots, the recorder of London - the city attorney - was asked if the right to arms protected armed groups, he wrote: "The right of his majesty's Protestant subjects, to have arms for their own defense, and to use them for lawful purposes, is most clear and undeniable."[15] Sir William Blackstone's Commentaries on the Laws of England describes the right to arms in England during the eighteenth century: The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.[16] The right of some English subjects to possess arms was recognized under English common law; however many English subjects were not permitted by law to possess arms.[17] Regarding these constraints, St. George Tucker wrote in 1803: In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.[18] [edit] Experience in America prior to the U.S. Constitution Early Americans cherished the right to keep and bear arms for several reasons. In no particular order, they viewed this right as important for: (1) deterring oppression, in line with a right of revolution; (2) personal self-defense; and (3) maintaining an organized militia system.[19] The rights of the Colonists to possess arms was stated in Revolutionary era newspaper articles, such as this statement in 1769: Instances of the licentious and outrageous behavior of the military conservators of the peace still multiply upon us, some of which are of such nature, and have been carried to such lengths, as must serve fully to evince that a late vote of this town, calling upon its inhabitants to provide themselves with arms for their defense, was a measure as prudent as it was legal: such violences are always to be apprehended from military troops, when quartered in the body of a populous city; but more especially so, when they are led to believe that they are become necessary to awe a spirit of rebellion, injuriously said to be existing therein. It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.[20] John Adams, lead defense attorney for the British soldiers on trial for the Boston Massacre, stated at the trial: "Here every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defense, not for offence…"[21] Ideals that helped to inspire the Second Amendment are symbolized by the minutemen.[22]When Colonists protested British efforts to disarm their militias in the early phases of the American Revolution, colonists cited the Declaration of Rights, Blackstone's summary of the Declaration of Rights, their own militia laws and common law rights to self-defense. While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the militia, there is no evidence that the British sought to restrict the traditional common law right of self-defense. Thomas B. McAffee and Michael J. Quinlan stated "… Madison did not invent the right to keep and bear arms when he drafted the Second Amendment—the right was pre-existing at both common law and in the early state constitutions."[23] In contrast, historian Jack Rakove suggests that Madison's intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that the militias would not be disarmed.[24] One aspect of the gun control debate, is the conflict between gun control laws and the right to lawfully rebel against unjust governments.[25] This right was exercised within the Declaration of Independence.[26] This tradition continued after the American Revolution. In 1784, for example, New Hampshire adopted Article 10 of its Bill of Rights, which recognizes a "Right of Revolution."[27] In 1788, Alexander Hamilton also recognized a Lockean right of revolution: [I]f circumstances should at any time oblige the government to form an army of any magnitude[,] that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.[28] Hamilton used this argument to rally support for ratification of the U.S. Constitution.
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