6/08 Thou Shalt Not Infringe

Thou Shalt Not Infringe

Brent Allan Winters

The Second Amendment is a clear, concise statement of the common law tradition’s personal right to keep and bear arms, our foundation of national security. As the First, Second, Fourth, Fifth, and Sixth Amendments, the Second Amendment is brief because when drafted, no explanation was needed.

“The Framers of our Constitution,” says the Supreme Court, “were born and brought up in the atmosphere of the common law, and thought and spoke its vocabulary… [W]hen they came to put their conclusions in the form of fundamental law in a compact draft, they expressed themselves in terms of the common law, confident that they could be shortly and easily understood.” Therefore, “[t]he language of the Constitution,” said Chief Justice Taft, “cannot be interpreted safely except by reference to the common law… as it was when the instrument was framed and adopted.”

Those who demanded and those who drafted the Second Amendment revered their English liberties and knew well that the right to arms is a personal responsibility rooted deep in the common law. “The laws of England,” said Granville Sharp, “always required the people to be armed, and not only armed, but to be expert in arms.”

To know the Second Amendment in the context of our common law tradition will prevent its misrepresentation. A decade before American Independence, Blackstone wrote that common law “judges do not pretend to make new law, but to vindicate the old one from misrepresentation.”

Thus, the wisdom of our Second Amendment is seen in light of the common law: government is without authority to trespass (infringe) upon the natural right and responsibility of the individual to arm himself in his own defense and that of his family, neighbors, and country.

Colonial Americans insisted that the common law William Blackstone espoused was their birthright, which included the personal right to arms. Leading up to America’s Independence, however, England’s Parliament followed Blackstone’s unfortunate error.

In “[o]ur American plantations…”, said Blackstone, “the common law… has no… authority… .” From this false premise, Parliament reached a false and costly conclusion: The common law having no authority in the Colonies, Americans have no right to keep and bear arms. Thus, at Lexington and Concord, England began her policy of aggression to disarm her Colonies.

England’s use of force, however, backfired; the resulting war fueled American resolve and sharpened her convictions to keep her arms. To the victorious Americans, the personal right to keep and bear arms had become more than a reasoned conclusion, it was a felt necessity.

As they contemplated a national Bill of Rights “the smell of gunpowder from Lexington and Concord,” says Les Adams, “was still in their noses.” Consequently, they forbade their new government from infringing upon their personal rights to keep and bear arms. In addition, Americans saw that the Second Amendment gave teeth to their other personal freedoms in the Bill of Rights, encouraging boldness to freely speak, write, and associate.

Indeed, the Second Amendment was theirs: they knew its meaning, had suffered long to earn its passage, and tolerated nothing less than each person’s natural right to arms and private discipline in their use. Thus, without a hint of objection, they added the Second Amendment to the Constitution.

The common law tradition had always understood rights as an individual and personal, not collective, matter. “[T]he public good,” said Blackstone, “is in nothing more essentially interested than the protection of every individual’s private rights.” By this principle, James Madison structured the Second Amendment: the public good (“the security of a free State”) depends upon the private right “to keep and bear Arms,” being kept from infringement.

Justice Joseph Story, champion of our common law and Constitution, called the Second Amendment “the palladium” of liberties “since it offers a strong moral check against the usurpation and arbitrary power of rulers.” Justice Story understood the present necessity of the Second Amendment, but also foresaw the great danger creeping toward it, the danger now facing us: a gradual undermining, a gnawing at its foundation of personal right — in a word, infringement. “There is,” he said, “certainly no small danger that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.”

Identifying the danger, Justice Story forewarns us; taking heed, we will fulfill the Second Amendment’s purpose: real national security.


Brent Allan Winters is the author of The Excellence of the Common Law.