Originally published as 82 Mich. For educational use only. The printed edition remains canonical.
Originally published as 10 N. For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S.
In the last several decades, a vocal minority, popular with the major news media, has put forth a distorted interpretation of the second amendment to the United States Constitution for the avowed political purpose of removing an obstacle from the path leading toward their goal of depriving private citizens of some or all of their firearms.
And, as with virtually all attempts to minimize those precious freedoms guaranteed each American by the Bill of Rights, that minority has twisted the original and plain meaning of the right to keep and bear arms.
In this article, an unfortunately brief exposition given the fact that a complete discussion of the right to keep and bear arms would necessitate a multi-volume work, I will attempt to set out the historical development of the right to keep and bear arms so as to clarify the intentions of the Framers of the second amendment and will discuss and critically comment upon some of the more significant cases decided pursuant to that amendment.
By way of introduction to this discussion, it should be kept in mind that, in construing the Constitution, it is particularly important that the values of its Framers, and of those who ratified it, be applied, and that inferences from the text and historical background of the Constitution be given great weight.
Thus, the precedential value of cases and the light shed by commentators with respect to any particular provision of the Constitution tends to increase in proportion to their temporal proximity to the adoption of the main body of the Constitution, the Bill of Rights, or any other amendments.
Common Law Development of the Right to Keep and Bear Arms The right to keep and bear arms, like the other rights guaranteed by the Bill of Rights,  was not created or granted by the second amendment.
Rather, this fundamental, individual right, largely developed in English jurisprudence prior to the formation of the American Republic, pre-dates the adoption of the Constitution and was part of the common law heritage of the original colonies.
In doing so, it is, however, important to remember that the doctrine which justifies recourse to the common law in order to better understand the guarantees of the Constitution "is subject to the qualification that the common law rule invoked shall be one not rejected by our ancestors as unsuited to their civil or political conditions.
It may not be invoked to abrogate express constitutional guarantees because "[a]t the Revolution we separated ourselves from the mother country, and He set forth the absolute rights of individuals, "those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy,"  as personal security, personal liberty, and possession of private property.
In his Pleas of the Crown, Hawkins noted that "every private person seems to be authorized by the law to arm himself for [various] purposes.
And indeed, gentlemen, there exists a law, not written down anywhere but inborn in our hearts; a law which comes to us not by training or custom or reading but by derivation and absorption and adoption from nature itself; a law which has come to us not from theory but from practice, not by instruction but by natural intuition.
I refer to the law which lays it down that, if our lives are endangered by plots or violence or armed robbers or enemies, any and every method of protecting ourselves is morally right.
When weapons reduce them to silence, the laws no longer expect one to await their pronouncements. For people who decide to wait for these will p.
Indeed, even the wisdom of the law itself, by a sort of tacit implication, permits self-defense, because it does not actually forbid men to kill; what it does, instead, is to forbid the bearing of a weapon with the intention to kill. Such a duty was deeply imbedded in English and Germanic history and indeed antedates the invention of firearms.
Thus, in addition to the requirement of possessing certain arms, the Assize established a system of "watch and ward" which mandated each city to have armed men on guard at night to arrest strangers and give the "hue and cry" to summon assistance from other citizens if anyone resisted arrest or escaped from custody.
In later years, the Tudor kings began the first attempts to impose limits upon the use and possession of weapons; in particular, crossbows and the then-new firearms.
These measures were not, however, intended to disarm the citizenry who made up the bulk of the military forces but rather to prevent their being diverted from practice with the longbow the primary English military weapon since it could be fired relatively rapidly and penetrate chain mail at as much as yards by sport with crossbows and firearms which, at the time, were less effective for military purposes.
In addition, because "so meny men have opteyned license to shote in Crosebowes Inrealizing that his subjects possessed and used firearms for recreation and defense in spite of his efforts, Henry repealed all the former statutes and prohibited only the carrying of loaded firearms on a "Jorney goinge or ridinge in the Kings highe waye or elsewhere;" the prohibitions on keeping and shooting firearms were limited only to firearms smaller than "the lenghe of one hole Yard" for some and "thre quarters of one Yarde" for others.
As the statute makes clear, he did so because it was recognized that exercise in the shooting of firearms which by then were no longer considered merely ineffective sporting items by the citizens "may the better ayde and assist to the defence of this Realme Gardner  held that the Game Acts did "not extend to prohibit a man from keeping a gun for his necessary defence Eastly  similarly held that "the mere having a gun was no offense within the game laws, for a man may keep a gun for the defence of his house and family Dewhurst,  it was held that the law went only so far as prohibiting a person "to carry arms to a public meeting, if the number of arms which are so carried are calculated to produce terror and alarmThe Space Amish whip out their previously-hidden defence system and blow the startled invaders out of the sky.
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