5 Questions for Patrick J. Charles on Gun Control and the Second Amendment
Gun control and the Second Amendment are highly emotional and controversial issues in the United States. As a potentially landmark ruling in McDonald v. City of Chicago is shortly to be announced by the Supreme Court before its current term ends in June, Patrick J. Charles, author of The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court (McFarland, 2009) and Britannica’s new entries on both subjects, has kindly agreed to answer the following questions posed by Britannica executive editor Michael Levy.
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Britannica: In The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court (2009), you examine the debate over whether the Second Amendment protects individual or collective rights—that is, whether or not it grants individuals the right to own and carry arms or whether it enables citizens to arms only in relation to service in a militia, and conclude that it only protects the right to “keep and bear Arms” for the defense of the country in a militia force. How did you reach this conclusion?
Charles: I originally began writing The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court not as a book, but as an article discussing how the phrases “bear arms” and “keep arms” were used in colonial and state statutes from the inception of every colony to 1800. I had just read the District of Columbia Court of Appeals decision Parker v. District of Columbia, and was perplexed by the court’s examination. I was curious as to whether the court was correct in that “keep arms” and “bear arms” was popularly understood to mean private possession for personal uses or if the phrases had a more limited connection to militia service.
I began my search reading the prominent works of “individual right” and “collective right” commentators. I came to the conclusion that the only way to settle the debate was to start my research by sifting through every American statute available from our inception to 1800. I felt this was the best means to determine the popular understanding as would have been understood by the legislators, judges, and the people themselves. I came to this determination because, at this time in our history, the laws were not as expansive as they are today. Generally laws were one or two pages, leaving much to be determined by the common law. More importantly, these laws were generally printed, distributed, and read aloud so that the public was on notice. Thus, I would argue that legislative intent and popular understanding would have been one and the same at this time.
Upon sifting through each state/colony’s statutes a common thread began to develop. First, the phrases “bear arms” or “keep arms” were not in any laws concerning crimes, self-defense, homicide, hunting, game etc. Second, in state/colony militia laws the phrases “bear arms” and “keep arms” were prevalent. Third, the phrase “well-regulated militia necessary to the security of a free State” or some deviation of this phrase was prevalent in the preambles of many of these militia laws. Fourth, a close examination of the militia laws revealed much about eighteenth century American society and arms. In some instances, states/colonies provided the arms. In others, states/colonies provided able-bodied men to provide them. Meanwhile, most prescribed a combination of the two approaches and required able-bodied men to provide arms and supplied arms to those who were too poor to provide their own.
It was from these findings that I concluded that the right to “keep arms” and “bear arms” was intimately tied to service in the militia, and began to research more. After going through congressional and state debates, the proceedings of the state and federal constitutional conventions, and numerous other sources I did not find any substantive data to sway my conclusion. While I agreed with “individual right” theorists that the right to “keep and bear arms” was individual in nature, I found nothing that sufficiently severed that right from service in a “well-regulated militia.”
As of today, I still have not found any information that sways my thesis. If anything, my later works and articles have strengthened my initial approach in The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court....
Read entire article at Britannica Blog
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Britannica: In The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court (2009), you examine the debate over whether the Second Amendment protects individual or collective rights—that is, whether or not it grants individuals the right to own and carry arms or whether it enables citizens to arms only in relation to service in a militia, and conclude that it only protects the right to “keep and bear Arms” for the defense of the country in a militia force. How did you reach this conclusion?
Charles: I originally began writing The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court not as a book, but as an article discussing how the phrases “bear arms” and “keep arms” were used in colonial and state statutes from the inception of every colony to 1800. I had just read the District of Columbia Court of Appeals decision Parker v. District of Columbia, and was perplexed by the court’s examination. I was curious as to whether the court was correct in that “keep arms” and “bear arms” was popularly understood to mean private possession for personal uses or if the phrases had a more limited connection to militia service.
I began my search reading the prominent works of “individual right” and “collective right” commentators. I came to the conclusion that the only way to settle the debate was to start my research by sifting through every American statute available from our inception to 1800. I felt this was the best means to determine the popular understanding as would have been understood by the legislators, judges, and the people themselves. I came to this determination because, at this time in our history, the laws were not as expansive as they are today. Generally laws were one or two pages, leaving much to be determined by the common law. More importantly, these laws were generally printed, distributed, and read aloud so that the public was on notice. Thus, I would argue that legislative intent and popular understanding would have been one and the same at this time.
Upon sifting through each state/colony’s statutes a common thread began to develop. First, the phrases “bear arms” or “keep arms” were not in any laws concerning crimes, self-defense, homicide, hunting, game etc. Second, in state/colony militia laws the phrases “bear arms” and “keep arms” were prevalent. Third, the phrase “well-regulated militia necessary to the security of a free State” or some deviation of this phrase was prevalent in the preambles of many of these militia laws. Fourth, a close examination of the militia laws revealed much about eighteenth century American society and arms. In some instances, states/colonies provided the arms. In others, states/colonies provided able-bodied men to provide them. Meanwhile, most prescribed a combination of the two approaches and required able-bodied men to provide arms and supplied arms to those who were too poor to provide their own.
It was from these findings that I concluded that the right to “keep arms” and “bear arms” was intimately tied to service in the militia, and began to research more. After going through congressional and state debates, the proceedings of the state and federal constitutional conventions, and numerous other sources I did not find any substantive data to sway my conclusion. While I agreed with “individual right” theorists that the right to “keep and bear arms” was individual in nature, I found nothing that sufficiently severed that right from service in a “well-regulated militia.”
As of today, I still have not found any information that sways my thesis. If anything, my later works and articles have strengthened my initial approach in The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court....