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Old August 20, 2002, 11:48 PM   #1
agricola
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origin of the "right to keep and bear arms"

hey,

whilst looking at another article here it seemed to me that it would be a nice old jaunt through history if we were to look back on the (your terms) RKBA and how its developed into the second amendment that you all know and love.

to start the ball rolling, imho the right is a modern (1600's) corruption of old english (and european) ordinances that the subjects of the Crown must bear arms to serve in the King's forces according to their circumstances. this is based upon the lists of legislation culminating in the statute of winchester in 1285, which utilized the old obligation of freemen to bear arms (John France Warfare and History), the ancient trinoda necessitas (obligation to serve in the levy or fyrd). this ebbed and flowed until the English Civil War in which hardline protestantism and puritanism clashed with (real or imagined) catholic revolution with the crown and the republicans on either side of a divide.
With the history of the Civil Wars (explained here ) Parliament decided that the only guarantee that they as "protestants" had from Crown (or, more accurately, catholic) oppression was to arm themselves. They also, notably, did restrict the wording so that Parliament and not the Crown could establish "rights" as it saw fit and proper for society. To quote Malcolm:

The language of the English right to have arms, as already noted, was open to interpretation, but its intent became crystal clear in the years following its enactment. Although the Game Act of 1671 had not been specifically mentioned during Convention debates all new game acts dropped guns from the list prohibited devices. And despite the reference to weapons suitable to one's condition and as allowed by law in practice the right of all Protestants to have weapons was confirmed. As London's chief legal adviser explained to the mayor and council in 1780' "The right of his majesty's Protestant subjects, to have arms for their own defence, and to use them for lawful purposes, is most clear and undeniable.[23]

(emphasis mine)

Thus in the English experience the "right" springs from the short period of revolution and counter-revolution. This was then transmitted to you as the lessons of the (then) most recent revolution against tyranny available, and incorporated accordingly.
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Old August 21, 2002, 12:27 AM   #2
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Not even close...

The Brits may get their "rights" from the king, but our founding fathers recognized that rights were fundamental, not a "gift" that could be taken back at the whim of the next inbred tyrant. That (above post) way of thinking is one of the reasons we kicked their tails off our part of the continent.
We decided to be citizens, not subjects.
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Old August 21, 2002, 12:36 AM   #3
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agricola,

Problem with that is that the RKBA is unalienable and the 2A & 14A merely enjoin government from infringing that right. That the English codified a natural right is wonderful, but it's a far different and inferior thing from recognizing that a person has a natural right to protect himself however and with whatever means he sees fit.

You see, whatever is codified into law can also be codified right back out of law.
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Old August 21, 2002, 01:33 AM   #4
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blackhawk,

but thats the point; it seems to me that at some stage it was not a "natural right" (in terms of to keep and bear arms) as it seems to have been developed post the English Civil War, at least in the Anglo-American experience.

i would also question your acceptance of RKBA as a "natural right" based on your countries definition of "rights"; many many people in the UK consider health a "natural right" and care as deeply about the NHS as you do about RKBA, yet its another thing that doesnt seem to cross the pond very well.
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Old August 21, 2002, 07:45 AM   #5
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It starts a lot sooner than just the English!!!
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Old August 21, 2002, 08:24 AM   #6
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The so-called "right" to bear arms is unique among other similar rights...it is self-reinforcing. A person with a heavy machine gun is much better equipped to continue having it than a person with merely a single-shot musket, and either is better equipped than a man with a rubber band gun.

As for relying to the Parliament, rather than on the Crown, to permit ownership of arms, that doesn't solve the problem. Men tend to be even more vicious than individuals when their responsibility for evil actions is diluted (mob mentality), so ten or a hundred people could just as easily do what one would. In the case of the UK, the "right" has been lost through lack of self-reinforcement.

Having weapons does NOT guarantee freedom. Absence of them, however, does guarantee present or eventual subjugation. It also tends to coincide with heavy-handed oppression, as only under that condition can the absence of arms among individuals remain a reality...without the constant threat of punishment, some individuals would buy or make their own arms promptly. As people get acclimated to the risk of punishment, the severity of it must go up, else they will disregard the law and the consequences of breaking it anyway. As the severeity of punishments and the scope of activities they cover (start with ownership of firearms and proceed to ownership of component materials or mere thoughts on the topic), more and more people would decide that compliance isn't as safe as arming and fighting.
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Old August 21, 2002, 08:47 AM   #7
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agricola,

Taking it back to the Angles and the Saxons, a distinction between thralls and free men was that free men could bear arms, while slaves could not.

Joyce Lee Malcolm has done a wonderful study in her book To Keep And Bear Arms: The Origins of an Anglo-American Right, try reading it.

Englishmen once had a reputation as "the freest subjects under Heaven", as they had the right "to be guarded and defended from all Violence and Force, by their own Arms, kept in their own hands, and used at their own charge under their Prince".
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Old August 21, 2002, 08:54 AM   #8
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apples and oranges

agri cola,

Though we have common history as part of the Empire for 175 years, that bond was broken at Yorktown and emphasized at the Battle of New Orleans. We refused to be under the boot of your royals and be dependent on their arbitrary and whimsical view of 'rights'. The only lesson to be drawn here is that we recognize that this right and others come from the Almighty. That recognition was sufficient to motivate us to throw off the yoke of your onerous (and decidedly inferior) form of government.

BTW....I find it hard to believe that you praise the Roman Occupation
of the British Isles and the alleged benefits that your ancestor's servitude brought to the area. The Romans slaughtered and pilliaged their way around the Isles until they had cowed and 'romanized' the population (much the same way that the British Empire attempted to do with the rest of the world in later centuries). Who knows what contribution the indigenous peoples of Greater Britian could have made to the world without the influences of the Romans, then Catholicism.

The reason that we,as free Americans, have the God given right to keep and bear arms is because there is always the threat of internal despotism (like that practiced by your monarchy) along with the threat of external enemies (like the Romans in your country) looking with avarice, hatred or fear at our way of life. You depend on the the whims of man. We enjoy the gifts of a just and merciful God.
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Old August 21, 2002, 10:43 AM   #9
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agricola,

Quote:
it seems to me that at some stage it was not a "natural right" (in terms of to keep and bear arms) as it seems to have been developed post the English Civil War, at least in the Anglo-American experience.
To prove to yourself that it is a natural right, just look at animals. "Flight or fight" is universal among them, and us. If you manage to sneak up on a squirrel and grab it, you'll be very unpleasantly surprised at how violently it defends itself without ever having asked whether or not it has that right.

You come after me with rocks, who says I cannot defend myself with rocks, sticks, fire, or whatever else is available? You? I'm not going to ask! If I can't flee, you've got a fight, and "fair fight" is an oxymoron. There is not a right that is more natural or ranks higher than the right of self defense.

The quest for better armaments didn't begin with man against man. It began with man against nature, then man saw that the tools could be used for political purposes against other men.
Quote:
many many people in the UK consider health a "natural right" and care as deeply about the NHS as you do about RKBA, yet its another thing that doesnt seem to cross the pond very well.
Nobody has a "natural right" to enjoy the wealth of others for their own benefit. It's a healthful habit to eat, is it not? Take my food that I'm planning to get through the winter with, and you'll have a fight because you're infringing on my natural right to survive.

Your right to survive is your own. Take care of it yourself. So is mine, and I will, thank you. Likewise, your right to defend yourself is your own, and it is NOT your natural right for me to provide for your food or your defense even though I may do so.

Natural rights exist without the blessing of any other person or group. Once you understand that, many confusing things will begin to make sense to you.
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Old August 21, 2002, 11:09 AM   #10
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imho there is a difference between the "natural right" of self defence and the "right" enshrined in your RKBA. obviously self-defence is in existance, but the RKBA is something different because its advocates (including most of you) state that it is a defence against oppression, wheras Malcolm in the article I posted and the evidence of history suggest that, at least in the 1689 Bill of Rights, it was a defence against a percieved enemy (ie the Catholics) from getting into a position where they could enforce their beliefs.

Malcolms study in the article shown and history suggests that, at least before the 1600's, there was no percieved "right" to bear arms, rather that it was something done at the behest of and granted by the crown. When the Civil Wars removed the Crown from the scene, eventually resulting in the Glorious Revolution, the members of parliament took for themselves the power to grant or bestow such "rights" as they (parliament) saw fit.

With your revolution all the old ties to the motherland are broken; no king, no parliament and no militia. To prevent the British Army coming back and taking their new found freedom, and with the established and easily provable seventeenth- and eighteenth-century distrust of the standing army in general and the professional soldier in particular, the wording of the second amendment suggests to me, to use modern parlance, of a situation not unlike the Swiss model - a musket (or M16 or whatever) and a pistol with ammunition in every home for the defence of the commonwealth - ie: the framers were creating a militia and requiring each citizen to be a part of it; not the so called "natural right" to defend one's home, which they could easily (as the framers of the Bill of Rights) said - something like "The Right to Keep and Bear arms for any citizen for their personal defence and defence of their goods shall not be infringed"

the NHS example was designed to show you that, at least on this side of the pond, there is something that we consider a "right" that you don't.
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Old August 21, 2002, 11:22 AM   #11
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Our definition of rights centers about NONINTERFERENCE -- that is, we have no right to labor or goods of others, only the right to be left unmolested. I may have a right to have a weapon but it is up to me to earn enough to buy it or to make it.

Your definition of the right to health care depends on the ability to commandeer labor of medical professionals or funds needed to buy that labor. In short, right to food, health care, anything else, as defined in the UK, centers around an entitlement at the expense of others. Or am I misunderstanding you?
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Old August 21, 2002, 11:30 AM   #12
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Quote:
not the so called "natural right" to defend one's home, which they could easily (as the framers of the Bill of Rights) said - something like "The Right to Keep and Bear arms for any citizen for their personal defence and defence of their goods shall not be infringed"
Ah, but the framers recognized something that the English still don't get. That is that government CANNOT be trusted. There's no argument among social scientists that the best form of government is a benevolent dictatorship, but also that "he" inevitibly turns into a despot resulting in the worst form of government.

The fallacy of your argument is that limiting the RKBA to "personal defense and the defense of their goods" ends up with government deciding what arms are suitable for that considering what "likely" hazards a citizen would face.

It may be inconceivable to you that gangs of a dozen or more might descend on your rural home to rob, rape, pillage, burn, and kill you and yours, but it's not now nor was it inconceivable to us or the framers. Seems like a British general employed that tactic to "teach the colonists" a lesson. He did, but not the lesson he intended to teach.

If the "People" are to have control of the government, then the government must not be allowed to gain control over the people. Why is that so hard to understand? That's what "government of the people, by the people, and for the people" means.
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Old August 21, 2002, 11:31 AM   #13
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true, but its an illustration of how a population here feels about its society and "rights" and how imcomprehensible they are to another population and its "rights".

whether or not the NHS or free healthcare is a "right", we consider it is and would be up in arms if they tried to remove it. you feel the same about your RKBA.

its only arrogance that leads people to assume that their system is best and all others are defective.
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Old August 21, 2002, 11:34 AM   #14
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whether or not the NHS or free healthcare is a "right", we consider it is and would be up in arms if they tried to remove it.
I don't recall arms being available, so you must be speaking figuratively
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Old August 21, 2002, 11:35 AM   #15
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agricola,

Quote:
"The Right to Keep and Bear arms for any citizen for their personal defence and defence of their goods shall not be infringed"
Many state constitutions specify just that, actually.

Also, "If thieves shall come to a Man's House, to rob or murther him, he may lawfully assemble company to defend his House by force; and if he or any of his company shall kill any of them in defence of Himself, his Family, his Goods or House, This is no Felony, neither shall they forfeit any thing therefore". This from a popular English 17th century guidebook for Justices of the Peace. Also bear in mind that in medieval England (documented in writs dating back to at least 1252) neighbours were expected to turn out with the weapons they were bound to keep whenever someone raised the "hue and cry".

Glad you read a short article by Malcolm, but like a short article by Lott, you miss much of the background scholarship that you'd get if you read their actual works.
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Old August 21, 2002, 11:37 AM   #16
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blackhawk,

thats what you consider, but that is not what the consitution or the second amendment says:

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

or from the constitution:

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

or all of the judgement in US vs Miller : http://caselaw.lp.findlaw.com/cgi-bi...=307&invol=174

The only argument that you could make is that the reliance upon the militia, as opposed to the establishment of a standing army which was considered "tyrannical" and which was specifically targetted against in the Constitution and opposed by Adam Smith.
Your RKBA exists for the defence of the state, not defence from the state.
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Old August 21, 2002, 11:41 AM   #17
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its only arrogance that leads people to assume that their system is best and all others are defective.
Not ONLY arrogance, and best for whom?

It wasn't "best" for the citizens of the former USSR that confiscatory economic policies destroyed individual initiative among its citizens. Coercing work from people has never worked throughout history. Oh, you might get some small objective accomplished with slave labor, but "worked" in this context means self sustaining and prospering.
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Old August 21, 2002, 11:45 AM   #18
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Your RKBA exists for the defence of the state, not defence from the state.
Perhaps you haven't availed yourself to the numerous learned grammatical analyses of the 2A. Even such opponents of RKBA as Alan Dershowitz and Chuck Schumer admit that it protects RKBA.
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Old August 21, 2002, 12:06 PM   #19
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the RKBA does allow the citizens of the US to keep and bear arms, but for the establishment and staffing of the militia and not in terms of individual (as opposed to collective) self defence
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Old August 21, 2002, 12:09 PM   #20
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...and then there's this lovely reality of millions of armed people who are willing to fight over their preceived right because disappearance of it would trigger a meltdown of other rights as well. We might not have recognition of a right but we think we have it and we do have the guns...so it becomes a reality.

There's no middle ground in this issue. Enough of us intend to stay armed that we can be stopped only by being killed or imprisoned...otherwise we remain a mortal danger to the would-be infringers. Don't even need guns to ambush one of them and take his weapon...but having even a hundred-year old rifle makes the task easier. So the origin of our right is similar to the origin of Finnish independence, both in 1919 and in 1940 and in 1944...it was recognized when the USSR ran out of soldiers. I just acquired a Finnish Mosin-Nagant and it would be a real shame if I have to use something so old and obsolete to enforce my rights. I much prefer to use it for plinking at pop cans.
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Old August 21, 2002, 12:22 PM   #21
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Tamara mentioned Joyce Lee Malcom's excellent book, "To Keep And Bear Arms: The Origins of an Anglo-American Right". I understand that she has a new book out, "Guns and Violence: The English Experience", which continues to support the fact that America's tradition of personal ownership of firearms is the right course of action for a free people.

http://www.boston.com/dailyglobe2/2..._lobby%2B.shtml

The scholarship in favor the individual right versus the collective right is just so overwhelming that the only reason to start a "discussion" of this nature is to try to stir up the pot without coming to any reasonable conclusion.
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Old August 21, 2002, 12:23 PM   #22
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the RKBA does allow the citizens of the US to keep and bear arms, but for the establishment and staffing of the militia and not in terms of individual (as opposed to collective) self defence
You can say that billions of times, but it still won't be true.

Nevertheless, why don't you get started -- on a different forum...?
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Old August 21, 2002, 12:27 PM   #23
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FPrice / Blackhawk,

What does the constitution say? What does the 2nd Amendment say? What does Joyce Lee Malcolm say? The "right" is a development of the militia! Oleg's point of the Finnish example is precisely the way in which the "militia" would have been intended to work; RKBA along Swiss (and arguably Israeli) lines rather than the current situation.
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Old August 21, 2002, 12:29 PM   #24
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What does Joyce Lee Malcolm say?
I'd be careful tossing that about when you're making it painfully obvious that you haven't read her book. (It's at my elbow now, care for a walk-through?)

One article by Malcolm and the man's an expert on the historical context of RKBA in America. Reminds me of college philosophy students who suddenly decode the meaning of life off the back of a cereal packet.

You definitely need more background, ag. I'd suggest Jefferson, Mason, Henry, and your own Blackstone for starters.

Note that it's "necessary for the security of a free State" and not "necessary for the security of the State". Run with it from there...
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Old August 21, 2002, 12:39 PM   #25
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agricola,
US vs Miller hardly qualifies as a definitive case law concerning the 2nd Amendment of the Constitution.

The militia IS the citizens of the United States of America. Learn it. Feel it. LIVE IT. And then the 2nd Amendment will make sense to you as it does to us.
If you differ with this, convince me as to why the founders of the government to put the rights of the government in with the Bill of Rights, which spells out the rights of the citizenry?

If you are looking the the mindset behind the Bill of Rights, try the Federalist Papers-those involved in drafting and voting on the Constitution expound on the reasons for its content. For example, Alexander Hamilton in Federalist 29 states: If circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties for 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.

The founding fathers did not want another all powerful government or tyrant trampling the rights of the people. The Bill of Rights is not a separate document-rather an addition to it which can be read as part of the original. The BOR instructs the government what its boundaries are with respect to the rights of the citizens of this country. Period. Yes, we have the occasional fool who tries to take more than what is allowed, but they are put back in their place sooner or later.

And by the way-the Second Amendment was not "developed" into the right to keep and bear arms-that sounds as if it were some type of a fraudulent or devious subterfuge. It is written in plain American English. But you are right-we do know and love it very much, because we know where we would be if it weren't part of our heritage. There are many of us here who have fought for the right, from the battlefield to the ballot box and many places in between to ensure that it stays with the people.
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