The Irrelevant Second Amendment

The individual right to keep and bear arms as part of the state militia is guaranteed by the Second Amendment. What does that have to do with today’s citizenry? Nothing.

Vikings vs. English Saxon fyrd

Published on LinkedIn Pulse December 4, 2014

By Brian E. Frydenborg 3/19/2013

Updated November 30th 2015 to include a discussion of Lord Blackstone’s Commentaries

Originally published here on American Gun Laws thanks to Jason Rogers, republished by Stupidparty Math v. Myth

Other articles in this series:

Development: The Fix for Terrorism & Violent Crime

American Guns: Not Just Killing Americans (See Mexico)

Gun Violence in the U.S.: The Numbers Behind the Madness

Why Is the U.S. So Good at Gun violence?

Perhaps the most depressing thing about the gun-control debate in the United States, apart from the continuous stream of deaths that still have yet to merit not even a modestly serious policy response, is that for as many times as the Second Amendment to the U.S. Constitution—part of what is termed the Bill of Rights—is invoked, nearly as many times there is a total lack of historical context of that very amendment presented alongside. Into this vacuum all sorts of creative reasoning has flooded, to such a degree that the highest law courts and judges of the land, too, have fallen to such erroneous thinking that ignores the history and tradition from which the Second Amendment emerged.

J. G. A. Pocock correctly notes that “[i]t is notorious that American culture is haunted by myths, many of which arise out of the attempt to escape history and then regenerate it,” and the Second Amendment is a textbook example of this phenomenon.

J. G. A. Pocock correctly notes that “[i]t is notorious that American culture is haunted by myths, many of which arise out of the attempt to escape history and then regenerate it,” and the Second Amendment is a textbook example of this phenomenon. The roots of this amendment go back to Saxon culture in the era of the Roman Empire. When Rome decided to withdraw from its provinces in the British Isles early in the fifth-century to consolidate its withering power in the rest of the West, the Saxons, Angles, (from which England got its name) and other Germanic tribes eventually filled the power vacuum the Romans left. The most visible presence of Roman governmental authority had been the army, the professional, standing Roman legions that had been stationed in Britain. Security after their withdrawal became nonexistent, but the Saxons, after a bloody conquest, imported a tradition of theirs from mainland Europe with them: that of the fyrd, as the U.S. Army’s official history explains. In this system, all adult males had to engage in military training, and, in times of war, would be expected to fight. This tradition continued throughout English history. The English freemen, like the Saxons before him, were given the right to bear arms as part of a contract in which their responsibility was to train in their local militia and defend the realm when necessary. This part is important: there is no tradition in English history of the local peasants having an institutionalized right to keep and bear arms without the responsibility of being part of an organized militia which would act to defend the land when needed; the right to bear arms does not exist without the militia, and the militia does not exist without the peasants being trained for and participating in a militia.

There is no tradition in English history of the local peasants having an institutionalized right to keep and bear arms without the responsibility of being part of an organized militia which would act to defend the land when needed; the right to bear arms does not exist without the militia, and the militia does not exist without the peasants being trained for and participating in a militia.

Fast forward centuries later to the establishment of English colonies in the New World, in particular the colonies that would form the United States of America’s original Thirteen. Most of these colonies were founded by the English, and those that were not came under English rule long before the American Revolution. The state militias were merely the continuance of the colonial militias after America broke off from Britain by declaration in 1776, by treaty in 1783. One has to think of the massive technological changes that occurred between 1791, when the Second Amendment was added to the Constitution, and today, and then it should be obvious that the same system is not in place. For one thing, back then almost the whole population lived in the countryside, not cities, where there were lots of dangerous animals and pesky French, Spanish, and British troops prowling around, plus many Native Americans tribes that did not like their land being taken from them. This militia system made perfect sense in such a physical environment for almost all Americans except for a tiny minority in coastal cities lived in rural areas and on the frontier. It also made sense especially when one considers that many of the founders had a philosophical opposition to a large standing army, keeping in mind the warlords of republican Rome and the more recent example of Oliver Cromwell’s New Model Army which had not helped the brief experiment of England with republicanism in the mid-seventeenth-century. Theoretically, an army composed of state militias, tied to their localities, would be harder for a tyrant manipulate. Yes, some units of the Massachusetts colonial militia have survived in some form as they morphed, along with other units, into the U.S. National Guard, the direct descendant of the state militia system referenced in the Second Amendment. Yes, all adult males do register for the draft via the Selective Service. But registration is generally all that is required for adult males except for a few drastic eras in U.S. history. And the average men today do not regularly train, and are not expected to keep and bear arms of their own. Even those in the military, Guard or otherwise, do not own the weapons they will use in combat and cannot keep them in their homes. Even just by 1865, the state militia system, which evolved dramatically during the course of the four years of the Civil War, bore little resemblance to the system referenced in the Constitution, and after the first two decades of the twentieth-century, only a few vestiges of that system nominally existed. From WWI forward through the Vietnam War, the federal government brought in, trained, and equipped the vast majority of troops that fought, not the National Guard, which today is only a small part of the overall U.S. Military. The average adult man is not the only one, then, in the U.S. that has nothing to do with the National Guard; the average U.S. man in a military uniform has nothing to do with the Guard either and is part of a force structure that is only supplemented by the Guard. That should not, of course to discount the brave service of Guard units that served in Afghanistan and Iraq, or those that helped after Hurricanes Katrina and Sandy. But the U.S. Military today is overwhelmingly a professional, fully federalized, standing army. Even the Guard itself is composed of units structured in such a way that they bear virtually no resemblance in practice (even if they may in spirit) to the state militias referenced in the Second Amendment when it was written in 1789 and adopted in 1791.

As far as the arms that need to be “kept” and “borne,” if you’re in the Guard today you cannot bring a personal firearm you keep and own as an individual to bear while on active Guard duty. No, the weapons that will be borne into battle are owned by the U.S. Government, are kept on base, and not taken home or owned by the Guardsmen. Effectively, modern Guard practice destroys the traditional relationship between keeping and bearing arms and wholly separates those acts from service in the militia. In the end, all three major components of the Second Amendment—keeping, bearing, and serving in the militia—are transformed by modern Guard practice into relics from a past era that do not function or work together at all in the way they did in the late 1700s. Both its rights and the duties might still exist on paper, but they do not exist at all in practice and they apply to no one since no one keeps their own arms to bear in the capital M “Militia.”

The year after the Second Amendment was adopted as part of the Bill of Rights, Congress passed a law requiring all fit adult males to enroll in the militias, with each man required to provide his own basic equipment…Within months of its adoption by the states, the right to keep and bear arms as part of the militia allowed by the Second Amendment was coupled with the individual’s responsibility to enroll in the militia and to provide his own basic equipment, including his weapon, for his training and service in the militia.

The year after the Second Amendment was adopted as part of the Bill of Rights, Congress passed a law requiring all fit adult males to enroll in the militias, with each man required to provide his own basic equipment. Though enforcement of this law would prove very problematic, it is very important to realize how important the passage of this law is to understanding Congress’s conceptualization of the Second Amendment as Congress passed at the time it was passed: within months of its adoption by the states, the right to keep and bear arms as part of the militia allowed by the Second Amendment was coupled with the individual’s responsibility to enroll in the militia and to provide his own basic equipment, including his weapon, for his training and service in the militia. The point is this: the right does not exist without the responsibility. This goes back to the Saxons and early English, where this tradition began. This is not merely conjecture: the entire concept of citizenship in the late eighteenth-century minds of the Founding Fathers, almost universally educated in the Greek and Roman classics, was the same of republican Rome, Founding Fathers’ inspirationfor a republican government of checks and balances and divided government from which they created the American government and U.S. Constitution. In the ancient Roman republic, the Roman concepts of a right and citizenship are counterbalanced by the concepts of responsibility and duty: a right as a citizen is enjoyed because the responsibility of duty is accepted. And in today’s system, the responsibility to keep and bear arms in order to be of service to the militia is not a responsibility for all fit adult makes; in fact, it’s the responsibility of virtually no one.

Today, the Second Amendment is still on the books. It reads: “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.” It is a clear reference to an existing right, longstanding in English tradition going back to fyrd and the individual’s roles, responsibilities, and rights in reference to the militia. Does that mean that there is not a right to bear arms for an individual person, who today is almost certainly not in a capital M “Militia?” That is an interesting question and an interesting debate. The Second Amendment clearly references an absolute right, one that is part of a clear and explicit pre-existing tradition going back to Late Antiquity.  The mainly English colonists-turned Americans would have generally understood this and the reading of the Second Amendment to them would have been clear, especially to the educated Founding Fathers, many of them lawyers who would have had to have known about English law, the legalities of this tradition of militia service, and the rights and responsibilities this service entailed.  They would also have been familiar with Lord William Blackstone‘s landmark Commentaries on the Laws of Englandone of the great legal treatises in the history of the English-speaking world; published in four volumes from 1765-1769 in decade before the American Revolution, it was well known in its day and was the main source of knowledge on English law on the American continent both in the years before and for many decades after the American Revolution (one American printing of the fourth volume was pre-ordered by sixteen of the fifty-six future signers of the Declaration of Independence, including John Adams, and by the father of John Marshall, one of the great Supreme Court justices of early United States history.  In the very first part of this massive work, Lord Blackstone made clear that there were two types of rights for Englishmen in English common law: absolute rights and auxiliary rights, the latter subject to limits and regulation, and the individual right to bear arms in self-defense was explained as one of the key auxiliary rights of Englishmen:

THE fifth and laft auxiliary right of the fubject, that I fhall at prefent mention, is that of having arms for their defence, fuitable to their condition and degree, and fuch as are allowed by law. Which is alfo declared by the fame ftatute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due reftrictions, of the natural right of refiftance and felf-prefervation, when the fanctions of fociety and laws are found infufficient to reftrain the violence of oppreffion.  

And, again, this is not some new concept imposed upon English law by Blackstone; it is simply him putting into writing what had already been understood for generations after generation.  Thus, whether on one side of the Atlantic or the other, Englishmen in the era of Blackstone—the same era as the American Revolution and the drafting of the Constitution, Bill of Rights, and the Second Amendment—would have understood that there were two sets of rights related to the keeping and bearing of arms: an absolute right as part of the ancient English militia tradition and coupled with the responsibility of militia service, and a second auxiliary personal right to bear arms for self-defense but subject to various conditions and regulations.  But in the context of today’s society, the debate about an individual right to bear arms is one about which the Second Amendment, and the Constitution, is silent, as they only discuss the absolute militia right, not the auxiliary personal right. Ironically, those “militia” groups which are such religious believers in their concept of the Second Amendment are not even referenced in it since they are not the actual “well regulated Militia” referenced in it. Sure, groups like the NRA and the Republican Party are among the uninformed, and the Supreme Court has recently ruled in favor of a very different interpretation of this. But this is the same body that ruled free African-American men were not U.S. citizens just before the Civil War. Legal does not have to mean something is right in the sense of being correct (just think about slavery), and the rulings of ideologically driven justices may be law but are hardly accurate when they wholly ignore the history and tradition described above. It’s time to leave the Second Amendment out of the current policy debate as it is, clearly, irrelevant, despite modern distortions and inventions.

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