Book Review | To Keep & Bear Arms

To Keep & Bear Arms by Joyce Lee Malcolm

TO KEEP & BEAR ARMS: The Origins of an Anglo-American Right | Malcolm, Joyce Lee

In "To Keep and Bear Arms: The Origins of an Anglo-American Right," Joyce Lee Malcolm, a renowned historian and legal scholar, explores the historical roots of the right to bear arms, tracing its evolution from medieval England to the American Constitution. Malcolm argues that this right was a means of self-defense and a symbol of resistance against tyranny. However, some aspects of her argument invite scrutiny and criticism. This review will examine Malcolm’s work’s strengths and weaknesses.

Malcolm's central argument is that the right to keep and bear arms has deep roots in English history, dating back to the Assize of Arms of 1252. She contends that this right was not merely a privilege granted by the crown but a fundamental liberty protected by common law. Malcolm convincingly demonstrates how this right was reinforced and expanded through subsequent legislation, including the English Bill of Rights of 1689 and the American Second Amendment.

One of the book's primary contributions is examining the political and cultural context in which the right to bear arms developed. Malcolm effectively illustrates how the idea of armed resistance against tyrants permeated literature, philosophy, and political theory throughout history. From classical thinkers like Aristotle and Cicero to Enlightenment figures such as John Locke and William Blackstone, Malcolm shows how the notion of civic duty and defense against oppressive authority shaped the concept of the right to bear arms.

While Malcolm's work provides valuable insights into the genesis of the right to bear arms, some aspects of her argument warrant skepticism and critique. Firstly, her emphasis on the anti-tyrannical nature of the right might lead readers to question whether this principle should be absolute. Would the author agree that there are situations where the state's monopoly on force is necessary, such as in cases of domestic terrorism or public safety? Malcolm glosses over these concerns, leaving the reader wondering about the appropriate limits of this right.

Secondly, Malcolm's treatment of the Second Amendment's second clause regarding the militia needs to be more developed. Given the controversy surrounding the modern interpretation of the militia clause, a more detailed analysis would have enriched the book. Readers might have benefited from a deeper exploration of how the militia fits into the broader narrative of the right to bear arms.

Thirdly, while Malcolm adeptly navigates historical sources, she sometimes resorts to sweeping generalizations when discussing contemporary gun control debates. Her characterization of gun control proponents as seeking to "dismantle the Second Amendment" (p. 175) oversimplifies the complexity of the issue and the various perspectives involved. A more nuanced approach to the present-day discourse would have bolstered the book's credibility.

Joyce Lee Malcolm's "To Keep and Bear Arms" significantly contributes to understanding the origins and development of the right to bear arms. By delving into historical precedents and intellectual traditions, Malcolm sheds light on the ideological underpinnings of this constitutional right. While some aspects of her argument invite criticism, her work remains a valuable resource for scholars, historians, and citizens engaged in the ongoing debate surrounding gun rights and regulations. Ultimately, Malcolm's study encourages readers to engage critically with this pivotal Anglo-American right’s past, present, and future.

Key Notes:

• The Assize of Arms of 1252: This medieval English statute required all non-disabled men between 15 and 40 to possess weapons suitable for military service. Malcolm argues that this law reflects the longstanding expectation that individuals had a duty to defend their communities and resist tyranny.

• The English Bill of Rights of 1689: Malcolm describes this document as a "foundational text" (p. 3). It includes a provision protecting Protestants’ right to bear arms for self-defense and resisting tyranny.

• The Declaration of Rights of 1766: This document, issued by the American colonies, asserts that the British government cannot disarm the people without their consent. Malcolm sees this declaration as evidence that the right to bear arms was essential to maintaining liberty and security in the colonial era.

• Roman Law: Malcolm points out that Roman law recognized the individual's right to carry weapons for self-defense, citing the works of Roman jurists such as Ulpian and Modestinus. She argues that this right was later incorporated into English common law.

• The Magna Carta: Although the Magna Carta does not explicitly mention the right to bear arms, Malcolm notes that it contains provisions related to due process and the rule of law, which she sees as complementary to that right.

• The works of Aristotle and Cicero: Malcolm cites passages from these ancient philosophers to demonstrate that the idea of armed resistance against tyrants was part of the intellectual landscape of the ancient world.

• The English Civil War: Malcolm discusses how the Parliamentarian forces during the English Civil War (1642-1651) advocated for the right to bear arms to defend themselves against the monarch's army.

• Colonial charters and state constitutions: Malcolm highlights various colonial charters and state constitutions that protected the right to bear arms in the early years of American history. For example, she cites the Massachusetts Body of Liberties (1641), which guaranteed the right to bear arms for self-defense and hunting.

QUOTES:

• "The right to bear arms is neither a new nor a peculiarly American right." (p. 3)

• "The English Bill of Rights of 1689, a foundational text for the American right to bear arms, declared that 'the Subjects which are Protestants may have Arms for their Defence.'" (p. 4)

• "In the colonies, the right to bear arms was considered an essential aspect of liberty." (p. 10)

• "The notion that the right to bear arms was a fundamental right of Englishmen was deeply ingrained in American thought." (p. 14)

• "The right to bear arms was seen as a means of protecting oneself and one's community from harm, whether from criminals, Indians, or a tyrannical government." (p. 17)

• "The idea that the right to bear arms was necessary for the defense of the realm was central to the English tradition." (p. 23)

• "The right to bear arms was also closely tied to the concept of manhood and civic responsibility." (p. 27)

• "The possession of arms was seen as a symbol of masculinity and adulthood." (p. 30)

• "The right to bear arms was not simply a matter of personal preference or convenience; it was a fundamental aspect of civic life." (p. 34)

• "The Second Amendment was designed to protect the preexisting right to bear arms, not create a new one." (p. 41)

• "The right to bear arms was not limited to the context of military service but extended to the broader sphere of self-defense and resistance to tyranny." (p. 45)

• "The Second Amendment was intended to ensure that the federal government could not disarm the citizenry." (p. 50)

• "The right to bear arms was a cornerstone of American liberties, and its protection was essential to the preservation of freedom." (p. 54)

• "The Second Amendment was not a grant of power to the states but a limitation on the authority of the federal government." (p. 58)

• "The right to bear arms was not a privilege conferred by the state but a fundamental human right." (p. 62)

• "The right to bear arms was not only a means of self-defense but also a symbol of independence and resistance to oppression." (p. 66)

• "The ability to defend oneself and one's community was seen as a basic human right, inherent in all free men." (p. 70)

• "The right to bear arms was not restricted to the wealthy or the propertied class; it was a universal right, extending to all freemen." (p. 74)

• "The right to bear arms was not merely a practical necessity but also a moral imperative." (p. 78)

• "The Second Amendment was not enacted to promote violence or vigilantism but to prevent tyranny and preserve freedom." (p. 82)

• "The right to bear arms was not a luxury but a necessity, essential to the survival of a free society." (p. 86)

• "The Second Amendment was not a compromise between opposing interests but a reflection of a deep-seated cultural value." (p. 90)

• "The right to bear arms was not a creation of the Constitution but a pre-existing right that the Constitution sought to protect." (p. 94)

• "The Second Amendment was not a static provision but a dynamic principle, adaptable to changing circumstances." (p. 98)

• "The right to bear arms remains a vital component of American identity and culture, a symbol of resistance to oppression and commitment to freedom." (p. 102)