Sunday, January 20, 2013
The Assize of Arms and Keeping Them - Pt. 2
I wanted to feel more confident that I had my argument right about the “keep” part of Second Amendment, so I spent most of the day noodling around the issue by looking again at the 17th century English politics of arms. The word keep comes from Middle English (Not Latin or Greek to my surprise) kype, which was a fortified tower within a castle used as a refuge of last resort. The archaic meaning of keep appears in many 17th Century English laws, such as in keeping an army by paying soldiers. Somewhere along the line a more modern keep began to mean that something was yours, as in having it “for keeps.”
Charles II assumed the throne, after the deposition of Oliver Cromwell and the end of the long Parliament. In order to restore proper Order, Parliament acceded the use of arms to the Crown in Charles II, 1652: An Act for ordering the Forces in the several Counties of this Kingdom. The disposition of armed forces "was the undoubted right” of the Crown, to which Parliament “cannot nor ought to pretend.” Parliament also agreed that under Cromwell, “many evil and rebellious principles have beene instilled into the minds of the people, … which may breake forth unless prevented to the disturbance of the peace.” To prevent such disturbances, Parliament granted the Crown's right to issue, “severall Commissions of Lieutenancy” with the power to lead forces within the Realm “in case of Insurrection Rebellion or Invasion.”
To fund the prevention of disturbances, the Kings Lieutenants possessed the power to charge persons that “have a Revenue” with the arming and arraying of Horsemen and Foot Soldiers. The charge included a payment to each, “for so many dayes as they shall be absent from theire Dwellings and Callings by occasion of Muster or Exercise.” While the word “keep” does not appear in this statute, it seems that through muster or exercise, soldiers, "earned their keep."
The 1662 Act additionally empowered the wicked oppressing King’s Lieutenants to “inflict a penalty” and by warrant for, “Distresse and sale of the goods of the person or persons so neglecting or refusing …” to pay. Likewise, the Lieutenants were, “enabled & authorized … by Warrant ... to search for and seize all Armes in the custody or possession of any person or persons whom the said Leiutenants … shall judge dangerous to the Peace of the Kingdome …”
With James II fully out of the picture, Parliament enacted what became a constitutional “Bill of Rights.” William and Mary, 1688: An Act declareing the Rights and Liberties of the Subject and Setleing the Succession of the Crowne. This bill is a clear model for the American Bill of Rights. It simply made a list of offenses committed by James II illegal, such as, “raising or keeping (archaic) a standing Army” without the consent of Parliament. Additionally, with respect to arms, the Act ensures that, “Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law,” without employing the word keep in its modern possessory sense.
On the other side of the pond, before the 1688 Bill of Rights, Maryland, Delaware, New Jersey, New York, Rhode Island, Connecticut and Virginia exercised taxing power to require men to present with arms at their own cost and under a variety of circumstances. Of these statutes, only Delaware, with the first statute being promulgated in 1642, spoke in terms of keeping arms: “[men]… Shall be obliged to keep such Arms and Ammunition by him, during the Continuance of this Act....” and, again, in exempted certain men from muster while, “They being nevertheless obliged, by this Act, to provide and keep by them Arms and Ammunition as aforesaid, as well as others. And if an Alarm happen, then all those, who by this Act are obliged to keep Arms as aforesaid... shall join the General Militia....” Thus, almost universally, colonists possessed required weapons at their own “keep” for the benefit of the various Militias.
Somewhere, and I am not sure when or where, the archaic word keep changed in the Colonies to include its now modern possessory connotation. I am guessing there was a reticence to use keep in legislative language with respect to arms, because keeping a standing army was illegal unless authorized by Parliament. Likewise, Article 4 of the Articles of Confederation continues to use the archaic context of keep: “…[E]very State shall always keep up a well-regulated and disciplined militia … “
Certainly, the Confederation of States that came to be after revolution knew well the burden of keeping men in arms when it moved from Independence Hall in Philadelphia because of a mutiny of unpaid Pennsylvania war pensioners. Little doubt many an ill paid soldier carried his weapon away from the field of battle as his keep. Regardless, as the debates for ratification of the Constitution moved forward, the notion of the right to keep arms, in a possessory sense, began to reflect a 150 year old reality that Americans were armed, by spoil or otherwise. The grant of a right “to the people” to “keep” “arms,” as written into the Second Amendment, embodies the inevitable recognition that through victory against the British, Americans had earned their keep in muskets, without infringement. They had them for keeps.