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The Tale of Two Second Amendments

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If you think the gun rights-gun control debate is not a serious issue in this year's election, you are mistaken. Look no further than this year's Republican and Democrat platforms and one can see that Second Amendment politics is an issue of serious disagreement.

For Republicans, the Second Amendment is not limited to the holdings of the Supreme Court decisions District of Columbia v. Heller and McDonald v. City of Chicago, where 5-4 majorities only held that armed self-defense in the home, with a hand gun, is a fundamental right of law-abiding citizens. Allegedly, the right to keep and bear arms also "includes the right to obtain and store ammunition without registration," a right to self-defense "wherever a law-abiding citizen has a legal right to be," the ability to purchase and maintain unlimited ammo clips, and the ability to purchase and maintain assault rifles. All and all, Republicans see the Second Amendment as a means to enable "Americans to defend their homes and communities."

For Democrats, the Second Amendment is acknowledged as an "important part of the American tradition" that includes the "right to own and use firearms." However, unlike Republicans, the Democrats perceive the Second Amendment as being "subject to reasonable regulation." It is the Democratic Party's hope that there can be "an honest, open national conversation about firearms" and the "terrible consequences of gun violence."

What makes this political divide interesting is the manner the political parties are touting the Second Amendment. The Republicans see their interpretation of arms bearing as "antedat[ing] the Constitution and... confirmed by the Second Amendment." In other words, Republicans view the Second Amendment and their entire platform as restoring the Founding Fathers' values.

Meanwhile, the Democrats platform asserts progressive American values that they believe are in line with the issues and problems we face today. This includes addressing the problem of gun violence, with Democrats hoping to strengthen background checks, close purchasing loopholes, and devise "commonsense improvements" that protect the community at large.

Seeing that Republicans are claiming to be restoring our past and Democrats are touting progression, one would assume the Republicans' laissez-faire approach to guns syncs with eighteenth century legal understanding. Not true. In fact, it is the opposite.

To members of the founding generation, the entire purpose of government was to advance the public good through a well-regulated society. According to William Blackstone, a highly influential 18th century jurist, the "public good" was "nothing more essentially interested in the protection of every individual's private rights, as modeled by municipal law." This required combining and uniting the "individual, with the general interest," which is "most effectually done, in a democratic republic" through laws enacted by the people's representatives.

Part of this "public good" included preventing breaches of the peace and public injury with arms. As early as the Norman Conquest, restrictions on the carrying and using of arms began appearing in the legal discourse. And as early as 1328, the Statute of Northampton made it unlawful to not only bring a force affray, but even prohibited the act of going armed "by night or day, in fairs, markets, nor in the presence of the King's Justices, or other ministers, nor in no part elsewhere."

It was a prohibition reinforced by royal proclamations and recited in constable oaths from the 14th through the 17th century. Even after Parliament adopted Article VII of the 1689 English Declaration of Rights, the antecedent to the Second Amendment, which declared that "subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law," prominent 18th century legal commentators confirmed Article VII did not supersede the power of Parliament to prohibit the act of going armed in the public concourse to prevent public injury.

For instance, John Bond's 1707 edition of A Compleat Guide for Justices of the Peace it stated the statute applied to persons "that carry Guns charged." Indeed, if the person was assisting the "Sheriffs, and other Officers in executing their Offices" they were exempt from punishment. However, such public arming was at the discretion and order of government, not the individual.

In 1705 Michael Dalton also wrote that the Statute of Northampton prohibited the "wear[ing] or carry[ing] any Guns, Dags or Pistols charged" in the public concourse. Preparatory self-defense was not an excuse. As Dalton noted, "persons... so armed or weaponed for their defence upon any private quarrel" were not immune because they could seek the assistance of constable to have "the Peace against the other persons" enforced.

What makes the Statute of Northampton of such importance to the historic gun rights-gun control debate is it remained part of the common law despite the adoption of the Second Amendment and contemporaneous state "bear arms" provisions. A contingent of legal scholars, backed by gun rights groups like the National Rifle Association and Second Amendment Foundation, dismiss this influence by contending the Statute of Northampton included a specific intent or mens rea requirement. In other words, they argue the statute must be interpreted as an assault with a deadly weapon equivalent.

This interpretation is intellectually suspect for a myriad of reasons; primarily because numerous legal commentators stated it was the act of carrying "Armour or Weapons, not usually worn, [that] may strike a Fear into others unarmed." This included the very influential Blackstone, who wrote the "offence of riding or going armed, with dangerous or unusual weapons, is a crime against the public peace by terrifying the good people of the land."

Still, even if we ignore the historical evidence and demote the Statute of Northampton to a mere prohibition against carrying "dangerous or unusual weapons" among the public concourse, it is within the legislature's purview to decide which weapons are in fact "dangerous" and should be regulated, limited or prohibited. Just pause to consider this historical fact: an average eighteenth century rifleman could discharge two rounds per minute, giving a company of thirty riflemen the power of 60 rounds of ammunition per minute. Today, a number of firearms easily exceed this. It cannot be logical for eighteenth century law to prohibit the carrying of a charged single shot pistol, but for the Republican platform to assert an "antedated" constitutional right to publicly carry a firearm that carries six, 12, 15 or more shots today. This is not even taking into account 21st century demographic changes, especially the vast population shift from the countryside to urban areas.

The point here is not that public gun prohibitions are the definitive answer to solving or ending gun violence. There may be some truth to the argument that more guns in the hands of properly trained, law-abiding citizens deter crime. Instead, the point is that public gun regulations to preserve order and prevent public injury are part of our Anglo-American tradition, and it is a subject that has always been regulated by the legislatures in the interest of the common good. It is for this reason that the Republican's laissez-faire interpretation of the Second Amendment is worrisome. Not only does it seemingly foreclose an open and honest discussion on the dangers of gun violence, but it implies an armed society facilitates law and order, not government order. And if this is the Republican platform on guns, the Founding Fathers are shaking their heads at the Republicans and nodding in support of the Democrats push for "an honest, open national conversation about firearms."