The 2nd Amendment
The history and precedent leading to the 2nd Amendment began several hundred years before its creation and has its origin inEngland. The concept of citizens or "subjects" bearing arms dates back to at least the 12th century whenKing Henry II obligated all freemen to possess certain arms for defense. In the following century,King Henry III required every subject between the ages of fifteen and fifty to own a weapon other than a knife. This was of such importance that Crown officials gave periodic inspections to guarantee a properly armed townspeople. This was because England did not have a police force until 1829, and in the absence of a regular army it was the responsibility and duty of the subjects to keep watch and ward at night to confront and capture "suspicious persons". This remained relatively unchanged until 1671, when Parliament created a statute that drastically raised the property qualifications needed to possess firearms. In essence, this statute disarmed all but the very wealthy. In 1686, King James II banned without exception the Protestants' ability to possess firearms, even while Protestants constituted over 95% of the English subjects. Not until 1689, with the rise of William of Orange, did the Protestants possess firearms once again with the newly enacted law that reads, "That the Subjects which are Protestants may have Arms for their defence suitable to their Conditions, and as allowed by Law". The tradition of securing a military force through a duty of universal military obligation for all able-bodied males follows from the Elizabethan era militia in England.
The English Declaration of Rights (1689) affirmed freedom for Protestants to "have arms for their defence suitable to their conditions and as allowed by law." When Colonists protested British efforts to disarm their militias in the early phases of the Revolution, colonists cited the Declaration of Rights, Blackstone's summary of the Declaration of Rights, their own militia laws, and Common Law rights to self-defense. While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the militia, there is no evidence that the British sought to restrict the traditional common law right of self-defense. Indeed, in his arguments on behalf of British troops in the Boston Massacre, John Adams invoked the common law of self-defense.
Some have seen the Second Amendment as derivative of a common lawright to keep and bear arms; Thomas B. McAffee & Michael J. Quinlan, writing in the North Carolina Law Review, March 1997, Page 781, have stated "... Madison did not invent the right to keep and bear arms when he drafted the Second Amendment—the right was pre-existing at both common law and in the early state constitutions."
Others perceive a distinction between the right to bear arms and the right to self-defense; Robert Spitzer has stated: "..the matter of personal or individual self-defense, whether from wild animals or modern-day predators, does not fall within, nor is it dependent on, the Second Amendment rubric. Nothing in the history, construction, or interpretation of the Amendment applies or infers such a protection. Rather, legal protection for personal self-defense arises from the British common law tradition and modern criminal law; not from constitutional law."Heyman has similarly argued that the common law right of self defense was legally distinct from the right to bear arms.
The potential connection between the right of self defense and the new constitutional protection of a right to keep and bear arms contained in the Second Amendment depends on the distinction whether 'keep and bear arms' is synonymous more broadly with the right of individual self defense or does 'keep and bear arms' pertain more narrowly towards use of arms in a military context, or, in the case of the Common Law while still under the British, in service of the king and country. This distinction was not subject to serious judicial notice until the first gun control laws were passed in the Jacksonian era. Judges in the nineteenth century split over how to interpret this connection; some saw the Common Law right and the protection of a right to keep and bear arms contained in the Second Amendment as identical; others viewed these as being legally distinct. Texts from the era of the Second Amendment are largely silent on this important question.