Date of Award

Fall 12-2019

Degree Type

Thesis

Degree Name

MA History

Department

History

Advisor

Dermot Quinn, Ph.D.

Committee Member

Williamjames Hoffer, Ph.D.

Committee Member

Mark Molesky, Ph.D.

Keywords

militia, self-defense, bear arms, natural rights, English Bill of Rights

Abstract

Does the Second Amendment to the U.S. Constitution provide for an individual or collective right to bear arms? My thesis addresses this question by examining the development of seventeenth and eighteenth-century English common law and political and legal philosophy to support an individual right to bear arms and demonstrates how the founding fathers were greatly influenced by this English precedent.

As the records of the Boston Massacre trials demonstrate, the English common law and natural rights theory firmly established a fundamental right of self-preservation, which under the exigencies of the situation might be exercised through the use of firearms. During the seventeenth century, the evolution of natural rights theory contributed to the transformation of a duty to bear arms into a right. Both Thomas Hobbes and John Locke stressed that the right of self-preservation was possessed by the individual, the residue of those ceded to society in the state of nature. The English Whig political theorists, including James Harrington, Algerdon Sydney, John Trenchard and Thomas Gordon, all emphasized that it was incumbent upon each individual citizen to possess arms as a bulwark against the threat to liberties posed by a tyrannical government. The evolution of an individual right to bear arms culminated in the drafting of Article VII of the English Bill of Rights, providing that all protestants had the right to bear arms. The natural right of self-defense can also be seen in the works of the English jurists during the seventeenth and eighteenth centuries and in the development of the English common law. Edward Coke, William Hawkins, Matthew Hale, Michael Foster and William Blackstone all wrote extensively of the natural right of self-defense and this right was repeatedly acknowledged in numerous court cases during the eighteenth century.

The English legal and radical Whig writers had a profound influence upon American legal and political thought during the eighteenth century. Their works were widely read and frequently cited by both the political elite and the ordinary person in colonial America. This is repeatedly demonstrated by the multiple references in pre-revolutionary political literature and commentary surrounding the drafting of the constitution.

The language of the Second Amendment is opaque and its legislative history sparse. Yet the drafters of the constitution lived in a society where gun ownership was common, where a firearm was used as readily for hunting and defending oneself as for service in a militia. They contemplated an individual right to bear arms.

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