The Assize of Arms - Hen. 2 (1181)
Whoever possesses one knight's fee shall have a shirt of mail, a helmet, a shield, and a lance; and every knight shall have as many shirts of mail, helmets, shields, and lances as he possesses knight's fees in demesne.
Moreover, every free layman who possesses chattels or rents to the value of 16m. shall have a shirt of mail, a helmet, a shield, and a lance; and every free layman possessing chattels or rents to the value of 10 marks shall have a hauberk, an iron cap, and a lance.
Item. All burgesses and the whole community of freemen shall have a gambeson, [padded doublet] an iron cap and a lance;
If anyone having these arms die, his arms shall remain to his heir. If, however, the heir is not of age to use arms in time of need, that person who has wardship over him shall also have custody of the arms and shall find a man who can use the arms in the service of the lord king until the heir is of age to bear arms, and then he shall have them
Item, no Jew shall keep in his possession a shirt of mail or a hauberk, but he shall sell it or give it away or alienate it in some other way so that it shall remain in the king's service.
In early Anglo-Saxon days, common defence was based on the
fyrd -- an army mobilised from freemen to defend the local area or to join in a royal expedition. The idea was simple: a freeman was expected to be armed and to respond to a summons with whatever he had of use in the cause. King Henry's statute was designed to impose some regularity as to what kind of arms a free man should possess. And it might be noted that they were all
weapons of war! designed to kill!!!!
(And lest anyone think that a sword was just a silly pokey type of thing. Not. It was a highly crafted very lethal,
forged steel razor blade that could clear cut through a limb as through butter. )
The straight line from statute of 1181 to the act of 1792 ran through the entire course of English history. That history shows that the English were an armed people and that collective defence, whether local or national, depended on calling forth men who were armed and trained in arms.
A decree of Edward III in 1363 provided that:
“Whereas the people of our realm, rich and poor alike, were accustomed formerly in their games to practise archery – whence by God's help, it is well known that high honour and profit came to our realm, and no small advantage to ourselves in our warlike enterprises...[be it decreed] that every man in the same country, if he be able-bodied, shall, upon holidays, make use, in his games, of bows and arrows... and so learn and practise archery.” (Morgan, R.B., ed. Readings in English Social History: From Pre-Roman Days to AD 1837. Cambridge University Press. (2014) [1st pub. 1923] p. 150.)
Likewise, a decree of Henry VIII ordered that every village was to maintain targets on its green on which local men were to practice shooting “in holy days and other times convenient.”
This long-standing tradition of the
fyrd was accepted as a matter of course by the Colonists. They hardly needed to legislate on the matter for it was simply the custom and usage of the land.
There is a deleterious tendency among Americans to think that upon crossing the pond, the Colonists started a “new” society and forgot the old. On the contrary, the baggage they brought over as much included English law as it did English.
That said, a kind of reverse historical dynamic arose. As one might imagine, medieval England was something of a wild place. There were multiple invasions by or battles with Danes, Normans, Scots and Irish. There were vast solitary areas of forest, heath and bog. As of the early 17th century, England became more settled and urbanized. Even the protracted Civil War from 1649, (when Charles I was beheaded) to 1688 (when James II was run out of town), had more of a modern than medieval quality.
But as 1607 and 1619, the situation in America went backward, toward a more primitive wildness. The only difference was that Danes, Normans, Scots and Irish got replaced with Iroquois, Mohicans, Cherokee and so on. Of necessity, the tradition of the
fyrd acquired a new vitality. Thus, it is hardly surprising then that Connecticut, Maryland, Virginia South Carolina, and Georgia all required men to carry arms at church.
No man able to bear arms to go to church or Chappell ... without fixed gun and 1 charge at least of powder and shot."(Maryland)
AND
"All persons whatsoever upon the Sabaoth daye [who] frequente divine service and sermons ... [to] beare armes [and] bring their pieces swordes, poulder and shot (Virginia)
At least two colonies required carrying arms to other public public gatherings. For example a ordinance in Rhode Island provided:
"It is ordered, that no man ... shall come to any public Meeting without his weapon." Virginia, Massachusetts, Rhode Island, and Maryland all enacted some requirements for travellers to carry arms.
Doubtless, as things settled down, some of these expedients fell into disuse. Nevertheless, the
fyrd now called a
militia remained the principal way in which the Colonists provided for their defence, and no one questioned the right and the duty of able-bodied men to keep arms.
What was open to question, both in England and in the newly independent United States was the relationship between a “militia” and a regular “army;” between local authority (whether called a state, a “county,” “duchy,” or “baronage” ) and the central authority (whether called the “king” or the “federal government.”)
At this point, we have to mention that at no time did the King not maintain a core army. In fact, the whole purpose of “knights” was to serve as a professional “officer” corps, which freemen would support and by whom they would be directed.
When freemen were actively enrolled in the King's army for a campaign, they undoubtedly fell under what we would call military discipline. It could hardly be otherwise. But they were not a standing army.
As of the 17th century, with Cromwell's establishment of a “Model Army” the concept of a true standing army began to gain hold. But precisely because England was at war with itself at the time who controlled the army and “what about the militia?” became unclear. When the monarchy was restored, Charles II's first concern was to disband the army which was almost exclusively Protestant. When these rebanded as “militia,” he went after those. Thus, after James II was exiled, the
1688 Bill of Rights guaranteed the right of Protestants to keep arms for their defence (while at the same time the Crown went about disarming the Irish and taking their horses, to boot).
Things were a little more harmonious in the colonies, but equally ambiguous. Each colony had its own militia system. But, very nicely and free of charge, the Crown also provided regular army contingents to defend the colonies as a whole against the French, Indians and Spanish. The colonists were very happy with this arrangement... perhaps precisely because it provided the flexibility of ambiguity. They only became displeased with the regular army when it was used to confiscate illegal rum, enforce limitations on commerce or -- horror of horrors -- actually protect the Indians!!!
(Oh yes! If Americans actually read beyond the preamble of the Declaration of Independence, which the likes of Obama never tired of reciting
ad nauseam, they might discover a thing of two.)
This ambiguous colonial situation replicated itself in the
Constitutional Convention of 1787-1789. As is well known, the core tug of war at the convention was the power-relationship between sovereign states and the new national government. This was a repeat, under modern labels, of the old medieval tug-of-war between the barons and the king; at any rate: central authority versus local autonomy. This tugging and its fudging are at the heart of American Liberalism (as opposed to the French varietal which is much more logical but, in my view, less satisfactory).
As respects the army and the militia, there were basically three viewpoints: (1) that of the “radical Whigs” who wanted nothing but State run, popular, local militias and were hostile to any standing army; (2) that of the “moderate Whigs” who agreed but saw the necessity for some kind of standing army or core of trained professionals, and (3) Hamiltonians, who admired the French model, wanted a strong national Army and Navy and (by the way) saw no need for a Bill of Rights, on the ground that since “the People” were now sovereign how could they possibly reserve rights against themselves. (
Logique, n'est ce pas?)
In true British fashion, the newly minted Americans fudged. The First Fudge was found in
Enumerated Powers of Section 8, which granted Congress the power to:
(a) To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
(b) To provide and maintain a Navy [note: no two year limitation];
(c) To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
(d) 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.
Clearly, these enumerations were a balancing act. It must be asked, if Congress has the power to “raise and support” an Army and to “provide and maintain” a Navy, why bother with militias at all? Just raise such armies and navies as Congress sees fit. That's the way Frederick the Great did it! But ...oh no... something called “the Militia” is distinctly preserved. If you didn't know the history you might be excused from wondering what the difference between and “army” and a “militia” was. The text itself doesn't tell you.
But what historical tradition tells us is that those state-based popular armies, based on an armed citizenry, were implicitly preserved. What the Constitution granted was the power “to
provide for the calling forth” of them. Huh?
Why the pussy-footing? If Congress has the power to raise an army why doesn't it simply have the power to “call forth” the militia? Clearly, the Framers were ill-at-ease here, so they gave Congress the power to make preparations for that day when Congress might call forth the militias. The last clause gave some indication as to what this might entail; namely, to provide for arming and disciplining the Militia and governing that
part of them
as may be employed in national service. In other words, actual “active duty” federal control over the Militia only applied when and to the extent the militia were called forth
and employed in federal service. Otherwise, what Congress has the power to do is to provide uniformity of regulations and, if desired, funding. In other words, the state militias were preserved, but since the Framers didn't want this to end up as a useless hodgepodge of different arms and regulations, Section 8 allowed Congress to provide uniform standards for such time as they might be employed by the federal government. (Think of the effort to “coordinate” the national armies within NATO.) However, none of this gave Congress the power to take over the militia or even to issue arms to the militia, as a general propostion.
As is well known, Madison and others remained ill-at-ease with the powers accorded to the federal government, and in order to counter-balance Section 8's grant of powers, they insisted on a
Bill of Rights making explicit what powers were not granted. It is within this context that the Second Amendment must be understood.
That Amendment killed two birds with one stone. It made clear, albeit obliquely, that the militias of a “free state” were preserved. But it also made clear that the
fyrd too is preserved. The medieval and colonial system of a militia that is drawn from a pre-existing armed population was expressly confirmed by “the right to keep and bear arms.”
.
I have never been hostile to the argument that “to bear arms” might refer to bearing them “in service.” I think it clearly has that meaning. But within the thousand year arc of English and Colonial history, it also meant to bear them as individuals for general purposes. Issuing from and calling upon English tradition, the Framers expected men to render military service but that did not mean that they were otherwise unarmed; on the contrary, they were armed in expectation of military service and for other purposes. Nothing in legal text or history or social conditions supports such a contrary contention.
Adrian Fontes makes the anachronistic mistake of thinking that Section 8 modifies the Second Amendment. Nope.
The Second Amendment was designed to clarify Section 8.
Further clarification was provided by the
Militia Act of 1792 which, as stated, went the other way, giving Congress general oversight of the militia. In the original act, the president's power to “call forth” (or “activate” in modern usage) the militia was made contingent on his obtaining a judicial warrant for that purpose. In light of “disturbances” in the West which required swift action, this embarrassment was removed in 1795; henceforth, the president had summary authority to call forth the militia as needed for federal purposes.
Unfortunately, the propensity to use words carelessly confuses things. Many summaries on Google state that the
Militia Act (1792) provided for the "conscription" of adult age males. The word
conscription implies a standing militia of men on active duty. That was not the case. The Act required the
enrollment of males aged 18 to 45. What this meant, in modern language, was that men were registered for the militia, akin in modern times to registering for the draft. The States might prescribe when the militias were “called out to exercise” and/or what discipline should be followed when called “into service;” but otherwise men were free to go about their business.
The popular and haphazard nature of the militias in the early nineteenth century cannot be stressed enough. The language of the statutes are much more “imposing” than the reality. When Abraham Lincoln was a young man, the militia in his district was called forth by the governor to suppress some disturbance up-river. The men gathered together on the green with whatever guns and knives they had and wondered what to do. Well... first thing was they needed a leader and so they elected Lincoln (who was the tallest of the bunch and good at wrestling) to be their captain. Lincoln himself had little idea of what to do and so he ordered his men to march up-river. After marching up and around, pitching camp, and telling stories around the campfire, they marched around and back down, and then disbanded. Mission accomplished. Doubtless, there were other better regulated militias, but what I wish to stress is the popular nature of the militia as free men assembled with arms.
In my opinion, the core theme of the
Bill of Rights is to preserve three main
popular assemblies of citizens: (1) assembling to peaceably petition; (2) assembling with arms and (3) assembling as juries. In the Hamiltonian scheme there is no need for any of these. Once legislators are duly elected by free citizens, there is no need for the
demos to meet and petition (i.e. raise a ruckus). Write to your congressman or vote him out. As for trials, what an absurdity to allow a bunch of untrained and probably half literate yahoos to investigate the facts and apply the law! Law is a matter for professionally trained judges, as in France. As for assembling with arms, if you want to do that enlist in the King of Prussia's army. But this was not the English or the American way.
If anyone thinks that juries were much different from Lincoln's militia band, think again.
.
 |
| A jury of peers |
But as Justice Scalia wrote, the jury was preserved as a
circuit breaker against judges too much in the employ of the Government. So too the other two rights.
No government can provide for its own dissolution; and, indeed, one of the impetuses for calling the constitutional convention was the need to put down rebellions that had broken out. Government must oppress, otherwise anarchy prevails. At the same, time the Framers did not want it to have unlimited powers of oppression. The original Constitution established a system of split sovereignty coupled with republican "checks and balances." The
Bill of Rights added specific limitations coupled to the further bulwark of popular circuit breakers.
Make no mistake, the jury has the power to “return a verdict in the teeth of the law and the facts.” We don't encourage them to do so, but they retain the power so to do. Similarly, the Framers retained to the people the power of popular protest and the power to resist tyranny. In
Federalist Paper 10, Madison discussed the risks and dangers of free speech; and yet to abolish it, he wrote, would make as little sense as abolishing air simply because oxygen imparts force to fire. Again, in
Federalist Paper 78, Madison specifically notes that the popular retention of arms is a bulwark against tyranny. Is there any child that does not understand that "tyranny" as often as not operates under colour of law and is imposed by those who legitimately acquired power?
To some, the constitutional edifice may seem a ridiculous muddle and hodgepodge. But as Justice Holmes famously said, “
the life of the law is not logic but experience.” (
N'est ce pas?)
The experience of the colonists was such that while establishing a stronger central government, they nevertheless retained the limited sovereignty of the states, popular powers and the autonomy of the individual as both a responsible and participating member of society. Unlike Justice Breyer's “bureaucratic world of perfect equity” and safety, the system may be theoretically muddled but it preserves the ability to remain free.
In the nineteenth century
numerous issues arose concerning what was a “federal purpose” and in what manners concurrent state-federal jurisdiction operated with respect to the militias.
What can be said briefly, is that over the course of a century, the militias gradually metamorphosed into the National Guard and the Army, which started out in 1790 as a regiment of 700, grew into a standing, professional military, the very thing the Founders had feared. Worse, during reconstruction and industrialization, the Army itself was used to put down “insurrections,” “disturbances” and labour strikes, culminating in General MacArthur's outrageous suppression of the veteran Bonus Marchers.
But all of this is policy. The
principle of the matter remains the
Second Amendment which stands before and above all else. Attempts to reduce the
Bill of Rights to a mere iteration of expediencies reflects a profoundly subversive misunderstanding of the American political concept.
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