Armed in America: A History of Gun Rights from Colonial Militias to Concealed Carry - Hardcover

Charles, Patrick J.

 
9781633883130: Armed in America: A History of Gun Rights from Colonial Militias to Concealed Carry
Hardcover
ISBN 10: 1633883132 ISBN 13: 9781633883130
Verlag: Prometheus, 2018

Inhaltsangabe

This accessible legal history describes how the Second Amendment has been interpreted throughout most of American history and shows that today's gun-rights advocates have drastically departed from the long-held interpretation of the constitutional right to bear arms.This illuminating study traces the transformation of the right to arms from its inception in English and colonial American law to today's impassioned gun-control debate. As historian and legal scholar Patrick J. Charles shows, what the right to arms means to Americans, as well as what it legally protects, has changed drastically since its first appearance in the 1689 Declaration of Rights.Armed in America explores how and why the right to arms transformed at different points in history. The right was initially meant to serve as a parliamentary right of resistance, yet by the ratification of the Second Amendment in 1791 the right had become indispensably intertwined with civic republicanism. As the United States progressed into the 19th century the right continued to change--this time away from civic republicanism and towards the individual-right understanding that is known today, albeit with the important caveat that the right could be severely restricted by the government's police power. Throughout the 20th century this understanding of the right remained the predominant view. But working behind the scenes was the beginnings of the gun-rights movement--a movement that was started in the early 20th century through the collective efforts of sporting magazine editors and was eventually commandeered by the National Rifle Association to become the gun-rights movement known today.Readers looking to sort through the shrill rhetoric surrounding the current gun debate and arrive at an informed understanding of the legal and historical development of the right to arms will find this book to be an invaluable resource.

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Über die Autorin bzw. den Autor

Patrick J. Charles is the author of Historicism, Originalism and the Constitution: The Use and Abuse of History in American Jurisprudence and The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court as well as numerous articles in law journals. His writings on the history of the Second Amendment have been cited by Second, Fourth, Seventh, Ninth, and DC Circuit Courts of Appeals, and his book The Second Amendment was cited by Justice Stephen Breyer in the landmark Supreme Court decision McDonald v. City of Chicago. Charles currently serves as a senior historian for United States Special Operations Command, located at MacDill Air Force Base, Florida. In 2016 and 2014, Charles was awarded the Allan S. Major Award, and is the only two-time recipient of the award. The Major Award is given annually to recognize the top history program out of the over 170 wings and groups in the United States Air Force. Additionally, in 2008, Charles received the Judge John R. Brown Award for Excellence in Legal Writing. The Judge Brown award is given annually to recognize the top law school student note, article, or unpublished paper in the United States.

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Introduction

To say the history of gun rights is contentious would be an understatement. It is a history that has become guided by political ideology and cultural attitudes more so than facts. With the advent of the Internet and the proliferation of “fake news,” it is not surprising that the history of gun rights, or the history of any subject for that matter, is undergoing a factual crisis. What makes the history of gun rights unique is that the dispute has been ongoing for four decades. The point to be made is that what is often characterized as the history of gun rights is not really history at all, at least as understood by historians. Rather, it is a historically based narrative that is researched, written, and disseminated with two objectives in mind. The first is to reinforce the political and cultural views of the gun-rights community. The second is to convince those outside the community, and hopefully the courts in the process, that the history of gun rights is not all that different from other constitutional rights, such as the First Amendment freedoms of speech, assembly, and a free press.

This brief synopsis on the history of gun rights, although intellectually critical, is not something that I write because I am anti-gun, anti-Second Amendment, associated with communism or socialism, unfamiliar with firearms, or some other negative stereotype used in contemporary gun-rights literature to “pigeon hole” anyone who does not wholly subscribe to the tenets of gun-rights theology. My intention is solely to write a history in a manner that adheres to accepted historical methodology and objectivity norms. What this otherwise means is a history that is written in a manner that—to borrow from late historian Barbara W. Tuchman—stays “within the evidence.” A historian should never “invent anything, [not] even the weather.”

For almost a decade, I have researched, written, debated, and discussed the history of gun rights, as well as the potential legal ramifications of said history. Over that time, I must admit that my attitude on the subject has changed. Initially, I viewed the history of gun rights with a sense of intellectual idealism, or one might say intellectual naïveté. I believed that most of the legal academics that took part in framing this history did so because they were interested in learning about the past for the sake of learning about the past, and therefore were searching to find objective truths. It was with this intellectual idealism that I wrote my first book on the subject.

The book, as well as my interest in the history of gun rights, was stimulated by the United States Court of Appeals for the District of Columbia’s 2007 decision Parker v. District of Columbia, where a 2–1 majority held that the history surrounding the Second Amendment’s ratification conveys that the right to “keep and bear arms” was understood by the Founding Fathers to protect an individual right to own common-use weapons for use outside of the militia. Although I was just a law student at the time, and I must admit ill-prepared to fully grapple with all the legal complexities of the opinion, my background, training, and education on the history of the American Revolution and Early Republic led me to conclude that the historical analysis in the decision reflected one of three things: I was either completely misinformed on the history of the American Revolution and Early Republic, there was a sublayer of gun-rights history virtually unknown to historians and therefore the general public, or the historical pronouncements in the opinion were inaccurate.

In order to test the accuracy of the Parker court’s historical pronouncements, I read every primary source and secondary source on the ratification of the Second Amendment that I could find. This historical examination, while enlightening and informative, did not provide me with much closure other than the sense that the Second Amendment was tied to the larger constitutional debate over a federalized militia. Unsatisfied, I postulated another approach to test the Parker court’s central historical pronouncement. If, in fact, the court was correct that the Founding Fathers understood the term “bear arms” to mean carry arms, there would be plenty of examples in late-eighteenth-century literature. In the end, my historical examination turned up nothing of substance to support the Parker court’s central historical pronouncement. In almost every instance, the terms “bear arms” was used in a distinctive military context. While there were indeed a few outliers that used the term “bear arms” broadly, there was nothing in them to firmly suggest that “bear arms” was referring to the general carrying of arms for non-military-related purposes.

Still, I thought that there surely had to be something more in the evidentiary record that supported the Parker court’s historical pronouncements, and I postulated a legal-centric linguistic approach to the historical problem. Given that the Constitution and Bill of Rights were for all intents and purposes legal documents, drafted, debated, and amended by some of the late-eighteenth-century’s greatest legal minds, then surely the language used to comprise the Second Amendment would be found in the very laws governing eighteenth-century Americans. For three months, I was immersed in eighteenth-century law books. Upon finishing my research, I came to two historical conclusions: in eighteenth-century militia laws, all of the language that comprised the Second Amendment—“well-regulated militia,” “necessary to the security of a free state,” “bear arms,” and “keep arms”—appeared regularly. Conversely, in all the other eighteenth-century laws, including the laws pertaining to crime, self-defense, weapons, and hunting, none of the language that comprised the Second Amendment was present—not even different variants of the term “bear arms”—i.e. “to bear arms”, “bearing arms,” etc. Even more telling was the fact that not one eighteenth-century legal commentator or one eighteenth-century legal case used the term “bear arms” or any variant of the terms to describe the act of carrying arms or using arms in the act of self-defense. These findings led me to conclude that the Second Amendment was neither legally intended nor legally understood by the Founding Fathers as protecting a right to armed individual self-defense. Rather, the Second Amendment was intimately tied to service in a well-regulated militia, and the political history surrounding the militia, particularly from the late eighteenth century to the early nineteenth century, further supported this conclusion.

It was during the process of organizing my historical findings into a book manuscript that the Supreme Court of the United States granted certiorari in the Parker case and ultimately ruled in favor of the armed individual self-defense interpretation, albeit by a slim 5–4 majority. Like the Parker court, the Supreme Court’s decision, docketed as District of Columbia v. Heller, was centered on history in law. What immediately stood out from the decision was the majority’s linguistic analysis. With only a few working examples, the majority agreed that the minority usage of the term “bear arms” was the majority usage, and the majority usage was somehow the minority usage. What also stood out was the manner in which the majority explained away the Second Amendment’s prefatory language, as if the Founding Fathers had included it as merely a visual aesthetic.

In the months that followed, I modified...

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Verlag
Prometheus
Erscheinungsdatum
2018
Sprache
Englisch
ISBN 10 
1633883132
ISBN 13 
9781633883130
Einband
Gebundene Ausgabe
Anzahl der Seiten
558
Kontakt zum Hersteller
Nicht verfügbar
Verantwortliche Person
Simon and Schuster Netherlands BV
info@simonandschuster.nl

Herculesplein 96
Utrecht
3584 AA
Niederlande

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