Saturday, January 19, 2013

The Assize of Arms and Keeping Them

I thought I might spend a little time explaining why I believe the Second Amendment uses the words it does by looking at some history that was well known to the Colonists. Any Englishman of that time understood well the burden bearing of arms, which goes all the way back Henry II.  The Assize of Arms 1181 requires that, “Whoever possesses one knight's fee shall have a shirt of mail, a helmet, a shield, and a lance; …” After all, with the award of land to the knights that supported his grandfather at Hastings, Henry II needed a way to raise an army if the Angles, Saxons, Jutes or Celts became unruly.  Jews, however, could not bear arms.

James II, a Roman Catholic, targeted Protestants with enforcement of laws disarming owners of land worth less than 100 pounds, due in no small part because he put down a 1685 rebellion led by James Scott, the First Duke of Monmouth. After the Battle of Sedgemore, the Duke lost his head.  But worse, an elderly woman, Alice Lisle, was the first convicted  in the ensuing Bloody Assizes, because she harbored a non-conformist (Presbyterian or Puritan) minister, John Hickes and an outlaw, Richard Nelthorp.  Sir George Jeffries, the original "Hanging Judge," sentenced her to burn alive.  Soon after that, 144 were convicted in two days between September 18 and 19, 1685.  300 Protestants were hanged and 800 Englishmen were shipped as slaves to the West Indies.  James II, thereafter, became the first King to keep a standing army. Not so surprisingly, the well-armed Protestant, William of Orange regulated James II off the throne in the 1688 Glorious Revolution, because James thought it best not to engage William in battle. Afterward, Parliament passed the Bill of Rights 1689, which restored the right for Protestants (but not Jews) to bear arms.

The County of Monmouth, where I live here in New Jersey, was founded in 1675 by Scottish and Dutch friends of the Duke of Monmouth. 18 years after the Bloody Assizes, New Jersey, much like the other colonies, exercised its taxing power by requiring that all men between sixteen and fifty appear twice per year in the field, ”sufficiently armed with one good sufficient Musquet or Fusee well fixed, a Sword or [Bayonet], a Cartouch box or Powder-horn, a pound of Powder, and twelve sizeable Bullets …” Beginning a longstanding tradition of New Jersey law, however, there were many exceptions to this command.  School masters, civil officers of the government, members of the legislature, and slaves (but not Jews) were not required to bear arms. 100 years after Sedgemore, having deployed militias of men with their musquets to defeat an armed force once yet again beholden to a Crown, most States would not ratify the Constitution, fearing the rise of yet another brutal monarchy.

The Preamble to the Bill of Rights makes it clear that the first ten amendments sought to prevent federal abuse, by further restricting the already enumerated Constitutional powers:
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution. 
The Constitution before the Bill of Rights granted Congress and the President specific powers over an Army and the Navy, as well as over the Militias, organized within the several states, when they were called to service:
The Congress shall have Power …
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; 
U.S. Constitution, Art I, Sec. 8. 
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;
U.S. Constitution, Art II, Sec. 2
The Second Amendment, as described in the Preamble, states its purpose in a "declaratory clause", and then provides a following "restrictive clause":
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.  
The militia in New Jersey, at least, was “well regulated” by excluding civil officers of the government and the legislature.  It required only the the possession of a then modern weapon by a man in a field two days per year.  The Colonists thought the militias necessary for the security of a free state, little doubt, because they had only thirteen years earlier finally defeated an institution with a long history of godless brutality and cruel abuses in administering the English burden of bearing arms for the benefit of the Crown.

The key difference between the English burden of bearing arms and the Second Amendment restriction on federal power that made the U.S. Constitution palatable, however, appears as the grant of a right of the people to not just bear, but to KEEP their arms. This went farther than the English Bill of Rights of 1689, which states only that, "The subjects which are Protestant may have arms for their defense suitable to their conditions and as allowed by law." In the Second Amendment, there is no hedge. That way, rather than face another loss for liberty like the one taken by the Duke of Monmouth and the good Protestants at the Bloody Assizes, the American people knew they could fall in behind those like William of Orange, who James II chose not to fight. The deal the States made was that a Charles, a James, a George or any other central power would forever know that disarming Americans was out of their playbook forever.

History shows us how the First and Second Amendments fit together.  The American colonial experience made federal power an object of fully justifiable fear that it may become yet another power hungry Crown.  The States viewed federal power as totally unacceptable, unless the Constitution first guaranteed religious liberty, while next guaranteeing that any erstwhile federal imperium must know that anybody, backed by their own weapons, may choose to oppose them.

Molon labe.

1 comment:

Tom said...

Personally I find it very interesting that the modern argument which sprang from this issue, is now so bifurcated.

On our side we believe the right to 'keep' arms is a foregone conclusion and we're arguing we should all be allowed to 'bear' them with fewer restrictions.

While the left thinks the right to 'bear' weapons is already off the table (hence the NJ 'procedural ban' on concealed carry), and the extent of the right to 'keep' arms in the first place is what should be determined by the government.

As usual, my daughter see's through all of it. She listened to Andrew Cuomo's reprehensible '10 bullets to kill a Deer" speech and said to me "This crazy guy wants to get rid of people's guns, but how can he do that?! They all have GUNS! how can he tell them what to do?!"

"That's exactly the reason they have guns in the first place." said I.