Faculty of education department of english language and literature



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MASARYK UNIVERSITY

FACULTY OF EDUCATION

DEPARTMENT OF ENGLISH LANGUAGE

AND LITERATURE

The Historical, Ideological and Cultural Background of the Second Amendment and its Impact on Gun Control in the USA

Bachelor Thesis

Brno 2014

Supervisor: Author:

Michael George, M.A. Jiří Němeček

Declaration:

Prohlašuji, že jsem bakalářskou práci vypracoval samostatně, s využitím pouze citovaných literárních pramenů, dalších informací a zdrojů v souladu s Disciplinárním řádem pro studenty Pedagogické fakulty Masarykovy univerzity a se zákonem č. 121/2000 sb., o právu autorském, o právech souvisejících s právem autorským a o změně některých zákonů (autorský zákon), ve znění pozdějších přepisů.

Jiří Němeček

………………………………..

Acknowledgements:

I would like to thank Michael George, M.A. for his valuable support, professional advice and, last but not least, endless patience.



Contents

1. Introductiom………………………………………………………………………………..6

2. The Role of Arms in Society……………………………………………………………….8

2. 1 The Role of Armed Citizen in Early England……………………………………..8

2. 2 The Widespread of Arms………………………………………………………….9

2. 3 The Revolutionary Period – The Disarmament…………………………………..10



3. The American Republicanism……………………………………………………………14

3. 1 The Republican Theory…………………………………………………………..15

3.2 The Republicanism and Liberalism……………………………………………….16

3. 3 The Varieties of Republicanism………………………………………………….18



4. The Militia in America…………………………………………………………………...20

4. 1 The General facts about the Militia………………………………………………21

4.2 The Political Function of the Militia……………………………………………...22

4. 3 The Dangers of Professionalization – The Fear of Standing Army……………...23

4. 4 The Relationship of the Militia and the Republic………………………………..25

4. 5 The Decline of Militia……………………………………………………………26



5. The Division over the Second Amendment……………………………………………...28

5. 1 The Originalists View……………………………………………………………31

5. 2 The Revisionists View…………………………………………………………...32

6. The Originalists Argumentation…………………………………………………………33

7. The Revisionists Argumentation…………………………………………………………38

8. The Language of the Second Amendment………………………………………………43

9. The Second Amendment at the Supreme Court………………………………………..48

10. Conclusion………………………………………………………………………………..53

Annotation…………………………………………………………………………………...56

Key Words…………………………………………………………………………………...56

Works Cited………………………………………………………………………………….58




  1. Introduction

Many European people are looking at American gun culture with contempt at best and as a mark of savagery at the worst. The most striking paradox for the bystander is a fact that despite the amount of research on how much firearms contribute to homicides and violence, the most of American people are reluctant to even accept any gun control legislative, not mentioning giving up the firearms in general. Those people are not aware of fact how deeply is the relationship of armed individual rooted in the history stretching much further than the establishment of American colonies and generally unknown and most definitely not practiced in continental Europe. People of America valued their armed citizens formed in militia to the extent they found it necessary to protect this military body in both Articles of Confederation and later in the Constitution.

The most recent debates over the gun control legislative are based on the scope of the protection granted by the provision of the Bill of Rights in the Second Amendment. While one group of scholars insist on the Second Amendment protecting only the ability of people to be organized into the militia units without any intrusion from the federal government, the other group of scholars insist on Second Amendment protecting the individual right to own firearms.

This thesis is separated into two parts. The topic of first half of the thesis deals with the background that gave birth to the Second Amendment of United States Constitution, so the reader can make his own opinion on how to interpret the controversial provision. It takes a detailed look on the tradition of relationship of weapons and individuals throughout the history of the English nation and the ideologies and institution that shaped the revolutionary and post-revolutionary United States. Following chapters deal namely with the republican ideology as it was treated by the inhabitants of colonies and the institution of the militia, its political and social importance and stress as well as its military performance in crucial conflicts in the history of the United Sates.

The second half of this thesis focuses on the division the Second Amendment created both among the scholars and the public. It will deal with the stances of both main opposing camps and will take a closer look on their argumentation and the sources of the argumentation. There is a separate chapter that deals with the language and the phrasing of the Second Amendment as the text of this constitutional provision is interpreted differently by the supporters of each opposing camps. The last chapter summarizes the treatment of the Second Amendment by the Supreme Court of the United States and evaluates the impact of the Supreme Court cases on the gun control legislative in the United States.




  1. The Role of the Arms in Society

In order to fully understand the position of the Second Amendment in the United States Constitution and its significance in the American history and culture it is necessary to research the political, cultural development of the relationship of the individual and arms as well as to take a closer look on the anglo-saxon military tradition and its development in the history. This chapter aims to provide insights into the topics with the focus on such chapters from English history that are considered to be directly related to the relationship of individual and arms with all its political, ideological and military applications.

2. 1 The Role of Armed Citizen in Early England

The armed citizen had a paramount role in English military and political tradition. Arm bearing citizen in the service of the country was a concept largely unknown to the continental Europe where the states relied solely on the feudal military system. The first written record of armed citizen grouped in the militia come from the rule of Alfred the Great, but it is noted that the tradition of militia and citizens armed in defense of the country can be traced to A. D. 690 (Ansell 473). Even at this time there were laws according to which every landowner were demanded by law to own an armor and weapon that is in accordance to his wealth, possessions and social status. Moreover, these laws required every freeman to have weapons commonly used in infantry units and he was to serve in local militia. The most apparent sign of the close relationship of arms, defense and social status can be seen in the right of common folk to be accepted among the lesser nobility, if he equipped himself with appropriate armor and weapon and showed the willingness to fight in times of danger (Hardy 561 – 562). This historical evidence brings us the first notion that possession of arms was understood as a difference between the freedom of man and his bound to other man (Bisson 1199 – 1200). In other words, if man was capable enough to obtain prescribed armor and weapon and conscious enough to use them in the defense of country in times of danger, he could ascend to a higher level in social hierarchy, as he proved to be a valid member of the society. By obtaining the weapon and armor, which was not an easy task, he proved his economic value by raising enough sources to do so and by using the obtained to common defense he proved his loyalty to country as well as his courage. As far as a period after the Norman conquest is considered, there were different opinion on how the tradition of armed citizen in defense of country developed. It was believed for long time that the militia tradition was dismissed to be revived later, but such a stance was disproved over the time and it came to believed that the militia tradition was kept, granting the large number of infantry men, but it was modified to some extent (Prestwich 41 – 44, Hays 382). Whichever point of view is true, it cannot change the fact that the many military duties and the duties of a police force rested on the shoulders of armed citizens. For example, the local citizenry was responsible for the pursuit of dangerous criminal using own weapons in order to do so (Columbia Law Review No. 29, 637 – 638). The self-armed citizenry was also responsible for keeping the night watch on the walls or even assisting local sheriff in time of insurrections. (Kopel 1334 – 1336, Malcolm 229).



2. 2 The Widespread of Arms

The completely new chapter of armed citizenry came with the Assize of Arms of 1181 and 1235, the first required every free man to equip himself with a weapon according to his wealth and status and to serve the king on his own expense and later widened the law on the poorest Englishmen and even the serfs, who from the social point of view were little more than slaves, requiring them to obtain on their own expenses at least a dagger and a halberd. The invention of longbow and its widespread use as a weapon prescribed by the Assize of Arms relieved the commoners of the financial burden of purchasing expensive weapons, as the longbow was fairly cheap weapon yet very powerful weapon that could endanger even an armored knight on the battlefield (Holt 16). The widespread of the longbow amongst the poorest provided army of archers that stun deadly blows to French feudal armies. Until now the militia duty or the obligation to arms was often seen as the nuisance for its financial burden of equipping and the time burden of regular trainings in arms, not to mention the present danger of perishing in the field and there were more than few records of prosecution for neglecting the duty. But after the successful campaigns in France, where the longbowmen contributed greatly to the victories in the field, new element was added into the obligation to serve – the pride (Kopel 1338, Keeney 535). The successful campaigns in France proved the effectiveness of the system of personal armament and it was taken to extraordinary extent. Edward I added to existing Assizes that everybody who can afford the bow and arrows shall do so and Edward III even granted the sheriffs the authority to force people to practice the archery in their free time. Richard II taken it a step further by banning numerous leisure activities and supporting archery ranges in order to stir the people in desired direction of training with bows in their free time and he required every Englishman and Irishman in England to have a bow of his own height (Hardy 562 – 563, Prestwich 50). The tradition of armed citizenry continued on with the minimal restrictions imposed by the government.



2. 3 The Revolutionary Period – The Disarmament

The crucial period for the evolution of the relationship of arms and the citizens is seen in events of 1639 – 1689. After the civil war between the parliament and king Charles I over the control of militia and the gunpowder regulation (Malcolm 233) resulted in the victory of parliamentary forces, parliament was left with task to disband the regiments that were often unpaid for months. The effort of regulating militia resulted into the military takeover of parliament, which however continued the efforts in regulations. Such further attempts opened the way for Oliver Cromwell’s new type of military controlled government using standing army to control (Skinner 4 – 5). Under the new administration, the country was organized into eleven districts, each governed by a major-general backed by the limited amount of militiamen to enforce the censorship, surveillance, and the election rigging. After Cromwell’s death, the remains of previously disbanded parliament were called forth and one of its first decisions was to make a list of every person residing in house and list of all arms and ammunition, while granting the authority the right to confiscate the arms on finding the just cause of danger to commonwealth. Even this parliament did not last for long. Its own commander-in-chief marched into London with his men, overthrew the government and installed the parliament that invited Charles II to return and claim the throne of his father (Hardy 569 – 570). Charles II and the new parliament continued in policy of repression. The censorship of press and books took place as well as the religious uniformity (Abbot 25 – 29). Only task to achieve the absolute rule was to disarm the citizens who became very well equipped during the period of political turmoil in the country. After some setbacks, Charles had his Militia Bill passed, establishing less universal service of militia and all men had to take the oath stating it is illegal to take up arms against the king and his officers were allowed to confiscate weapons of a person whom they found to be a threat to the kingdom (Malcolm 236, Hardy 570 - 571). In 1671, the existing hunting laws property restriction of annual worth of 80 pounds adopted in Stuarts era (Manning 38 – 39) were amended allowing hunting only to people with land worth at least a hundred pounds and restricted non-hunters to keep a gun or a bow. Such amendments aimed to disarmament of general population as the land value imposed was almost impossible (Bellesiles, Firearms Regulation 141 – 142). By the existing hunting laws, people were restricted to keep the hunting equipment such as nets and traps, but under the newly amended law, anyone found unfit by the property quota was banned from keeping a bow or firearm in his house (Malcolm 238 -239) and appointed gamekeepers were authorized to confiscate hunting equipment of subjects unable to fulfill the quota (Kirby, Kirby 251 – 252). The records show that the extensive searches and confiscations took place on behalf of the hunting laws and militia act (Hardy 571).

The proverbial last straw came with James II reign and his ongoing disarming policy while at the same time installing catholics into the army. After the Monmouth rebellion, James rallied on regular troops of standing armies. By this practice along with his pro-catholic approach, he alienated almost everyone in the country and fled when the country was formally invaded by his son-in-law William the Orange and his wife Marry (Miller 659). Being opposed by the most of the country, James II fled and William had to accept the Declaration of Rights. This Declaration was not a radical or revolutionary document, but it simply reinstalled and confirmed the rights of individuals that had been violated in last fifty years. Among the others there was a right to have arms for the defense as allowed by the law (Hardy 578).

In the fifty years long period the people of England experienced the harassment from the side of the government, the confiscation of their property with no chance of compensation, the censorship and attack on their religious independency. They were deprived of their entertainment and forced to obey people who were often former criminals released only for the purpose of the military service. The prerequisite to stripping the people of their liberties was their disarmament. The political opposition was first to have its arms taken away and the loyal followers were first to be armed. It was soon understood that whoever had the arms had the power as well.

The tradition of arms possession evolved through history. From being first more or less the burden, both financial and time arms possession became the safeguard that allowed the people to secure their personal safety and their political muscle as well. The image of armed citizen amassed in the militia units kept the monarchs and the parliament from taking adventurous steps against the people. The moment people were disarmed other actions against their liberties were promptly taken. Apart from the political significance of armed population there was obvious military use. People were required to own certain types of weapons in order to be ready to defend the realm from the invading enemies, outlaws and other possible dangers. Moreover, they were obliged to train regularly to use the prescribed weapon and the leisure activities connected to military service, such as practice shooting, were often promoted, while the other leisure activities having no or minimal effect on the readiness of people to fight were often banned. Such trainings and activities had an effect on the spirit of the people, building the sense of unity and confidence.

Apart from these obvious reasons, there was a more intimate relation of person and his weapon. As it was previously mentioned, the ownership of a weapon and armour came hand in hand with the social status within the social ranks. The ownership of the weapon was the sign of recognition in the community and the sign of his own skills that allowed him to obtain the resources to equip himself as prescribed by the law. It meant a difference between an individual who by his skills in craft made him a valuable and desired member of the community and the serf who was just a cheap labor for somebody else. The personal pride, dignity and a certain degree of independence behind the ability to obtain a weapon and carry it as a badge was one of the most significant attribute of ownership of weapon. By taking away their weapons, people were to certain extent also robbed of their pride and dignity and were in fact told they are not citizens of the realm, but they are the property of the realm and the realm could do as it please with no regards to the rights and wishes of its people.

These English sentiments and experiences were of course exported overseas to the colonies, where it had serious impact on forming the political and ideological environment. The need of armament in colonies was even more significant than in England or any other European country. Colonists faced the constant dangers of Indian attack and were dependent on hunting for their food supply. Same as in England, the men of colonies were required to have a gun stored at home and report for regular practice. Added to the all functions of the weapons in society, for Americans, they were also a mean for day to day survival.



  1. The American republicanism

It is of a little doubt that the republican ideology and values were central in forming of American society, especially in time prior to the War of Independence and in period of forming and reforming the nature of newly born republic. The predominant perspective on republicanism maintained the more or less united front of all people across the social, religious and economical spectrum, upholding the ideals and values of republicanism almost as a secular faith (Tagg 504). Such an understanding of republicanism in America was of a central theme applied almost uniformly in works of historians approximately until 1980’s. Since then, many scholars raised serious doubt about this broad and universal acceptance and understanding of the essence of republicanism in all ranks of American colorful society (Shalhope 335). This chapter is focused on describing general features and concepts of republicanism in America with all the local differences and variations. It also aims to evaluate the role the American republicanism had in the society prior to the War of Independence and its role in shaping the society in post-revolutionary period.

3. 1 The Republican Theory

The central theme of the republicanism is constant struggle between the liberty and the power and its aim to limit and corrupt the liberty. In the minds of republicans, the practice of virtues and vigilance of people, ready to sacrifice their personal welfare for the common good of preserving the liberty (Nord 43), was the only possible way to not be overwhelmed by the power-corrupted individuals or groups of individuals, aiming to strip the liberties of public on behalf of their selfish goals (Oakes 553). The public virtue was crucial for good government. To put it as simple as possible, people practicing industry, vigilance, temperance, frugality and simplicity was a republican stock, while those in pursuit of luxury were corrupt and corrupting others as well. (Shalhope 335, McCoy 305). Such a view was predominant for a long time and saw the Americans as united and homogenous in their belief. From such perspective, the War of Independence is perceived as an uprising of nation that felt threatened by the tyranny of its own motherland and saw their liberties being taken away. This was the very essence of republicanism – the struggle to protect the liberties from the corruption of power, where the vigil republicans took arms to defend their values (Appleby 21 – 22).

If researched more deeply, it is important to realize that republican political theory perceives the human being in two different perspectives. Each individual incorporates two beings within oneself. The first public self, working for the common good and the benefit of community and the second private self, who seeks the fulfillment of one’s well-being regardless the needs of the society. It is inevitable that these two parts within a person would come to a conflict on numerous occasions and, of course, the same conflict must be perceived on the level of the state and politics. The eighteen century republican thinkers were painfully aware of fact that the citizens are both product and the creators of the state. The republic thus formed a circle in which the virtuous citizens would create a virtuous state, which in returns provides the opportunities and faculties to promote virtue in its citizens (Harvard Law Review, Vol. 107, No. 6 1402 – 1403) . The major weakness, of which the republican thinkers were also aware of, of such a co-dependency was the swiftness with which the corruption would spread if either citizens or state became corrupt. In order for the republic to stay intact and sound, it required citizens politically aware enough to recognize when the state has walked away from the path of virtue and step in to return it on the path and at the same time self-aware and disciplined enough to recognize the point one prefers one’s individual well-being to well-being of society. Republicans were also aware that citizens, being the ultimate power in republic must participate in politics for attaining the common good must have certain fundamental rights that cannot be altered or canceled by political process, in case the state would became corrupt and sought to corrupt and subdue the citizens. One of such fundamental rights was a right of armed resistance. In republican theory each virtuous citizen was necessary to be armed for merely an existence of a mass of armed citizens served as a pre-emptive to ambitions of corrupted individual or interest group to seize a power. If such an individual or group would undertake the risk and somehow succeeded in usurping the power, the body of armed people had a chance to resist the oppression if they would not have ended such a rule swiftly (Williams 563 – 566).

3. 2 The Republicanism and Liberalism

If we keep the inner struggle of a republican and a self-interested individual both on human and state level alike, it provides us very useful insight into the historical data and it provides us with a pattern we may apply in general onto the struggle of two major political theories that shaped American society - the republican theory which was long seen as universal in colonial America and the liberalism that stressed the individualism and the pursuit of one’s well-being (Appleby 22 – 26).

Numerous scholars have pointed out that in order to rightly understand the complexity of American republicanism and Revolution, one has to understand the relations between specific social groups and their specific ideologies, influenced by the economic standing and religion (Tagg 506 – 507). Those diversions were more apparent in urban areas, especially port towns such as Boston, Philadelphia and New York, where the interdependence of economic shifts, social changes and political consciousness are revealed. In those towns, the market changed the long-valid social and economic relationship by the uneven distribution of wealth which deepened over a time (Nord 44 - 45). The traditional communal values of republicanism clashed with those claiming that stressed the individual wealth seeking as a way to secure a common good. While the lower classes of population upheld the traditional values of communal obligation, the successful merchants, shopkeepers and speculators turned to accept the modern economic paradigm. Thus by 1775, many regions entered war and the dialogue of the constitutional rights socially divided with poverty in low ranks, uncertainty in the middle and luxury in upper ranks of society (Nash 3 - 15).

Another sound argument for diversity in american republicanism could be taken from the examples of military service in militia. Such a military body was highly valued in republican beliefs and as the Second Amendment itself stresses is necessary to the security of free states. The approach to the militia, however, was of fundamental differences with each of the colonies. Pennsylvania, for example, on account of its large Quaker and Mennonite populations was unable to create any kind of larger military establishment with the exception of small frontier guarding units, even when threatened by continuous Indian raids on the frontier. In October of 1755, Ohio Indians assaulted the Penn’s Creek frontier on the north and raided the country unchecked for six months, while the assembly was disputing over the means of collecting the previously agreed funding of 50, 000 pounds for military defenses. The issue discussed was whether to tax the landowners or not. After some setbacks, both military and political in nature, the Pennsylvania Regiment was established in spring 1756, depending on voluntary recruitment. The recruits were mostly indentured servants, ex-servants and other landless laborers who were mainly attracted by the bounty of one pistole – about sixteen shillings and daily payment of one shilling and six pences, rather than volunteers who came to fulfill their republican duty (Ward 75 – 79). Quite contrasting experience was a case in Massachusetts. Substantial part of colonial forces was formed by young men from mid-teens to their mid-twenties. These men were in waiting for their inheritance of land or other forms of property and were available for the military service. Here, the reasons for enlisting were economic to certain extent, but they were also family and community pressures to be considered. Men joined the relatives already in service or answered the appeals of local dignitaries. The military body resulting from such manner of recruitment was closer to republican definition of militia. There inner relationship of the unit was based more on kinship rather than military chain of command. Like in Pennsylvania, there was a great religious influence present in Massachusetts as well. During the Seven Years War. The French king was labeled Antichrist and it was the duty of God’s chosen people to face him in the battlefield (Higginbotham 239 – 240).




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