Joyce Lee Malcolm's historical study backs those who argue that gun ownership is right of the private individual.
Harvard University Press (1996)
Reviewed by: Eric Howard
In this book, Joyce Lee Malcolm traces the Second Amendment back to the longstanding—if never rigorously observed—legal duty of English "lords, knights, esquires, gentlemen, and the inhabitants of every city" to keep and practice with arms. Long before the existence of the U.S. Constitution, the possession and use of arms was controversial in England, largely because of the tension between two widely accepted axioms that continue to shape the debate about guns. One such axiom, which is reflected in the U.S. Constitution, is that a standing army in time of peace is a threat to freedom. The corollary is that a citizen militia is the preferable alternative.
On the other hand, fear of crime and insurrection led to the creation of laws restricting arms possession among the disfavored classes and dealing severely with poaching. During the religious upheavals of the seventeenth century, the issue of whether the government should support a standing, professional army or a citizen militia was anything but academic.
Later, Malcolm writes, "during the eighteenth century...nglishmen came to accept the Whig view of the utility of an armed citizenry" Such a citizenry would defend itself against crime and tyranny and the state against its enemies. The Framers of the U.S. Constitution adopted this view into the Second Amendment, the language of which gained "brevity and elegance...at the expense of clarity" during the ratification process.
Finally, Malcolm addresses a central item of contemporary debate. She writes: "The argument that today's National Guardsmen, members of a select militia, would constitute the only persons entitled to keep and bear arms has no historical foundation."
Whether or not one agrees with Malcolm's conclusions, To Keep and Bear Arms is a milestone of Second Amendment scholarship.
Eric Howard is associate editor of Los Angeles Lawyer.