Armed In America: A History Of Gun Rights From Colonial Militias To Concealed Carry by Patrick J. CharlesArmed In America: A History Of Gun Rights From Colonial Militias To Concealed Carry by Patrick J. Charles

Armed In America: A History Of Gun Rights From Colonial Militias To Concealed Carry

byPatrick J. Charles

Hardcover | January 23, 2018

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This accessible legal history describes how the Second Amendment has been interpreted throughout most of American history and shows that today's gun-rights advocates have drastically departed from the long-held interpretation of the constitutional right to bear arms.

This illuminating study traces the transformation of the right to arms from its inception in English and colonial American law to today's impassioned gun-control debate. As historian and legal scholar Patrick J. Charles shows, what the right to arms means to Americans, as well as what it legally protects, has changed drastically since its first appearance in the 1689 Declaration of Rights.

Armed in America
explores how and why the right to arms transformed at different points in history. The right was initially meant to serve as a parliamentary right of resistance, yet by the ratification of the Second Amendment in 1791 the right had become indispensably intertwined with civic republicanism. As the United States progressed into the 19th century the right continued to change--this time away from civic republicanism and towards the individual-right understanding that is known today, albeit with the important caveat that the right could be severely restricted by the government's police power.

Throughout the 20th century this understanding of the right remained the predominant view. But working behind the scenes was the beginnings of the gun-rights movement--a movement that was started in the early 20th century through the collective efforts of sporting magazine editors and was eventually commandeered by the National Rifle Association to become the gun-rights movement known today.

Readers looking to sort through the shrill rhetoric surrounding the current gun debate and arrive at an informed understanding of the legal and historical development of the right to arms will find this book to be an invaluable resource.
Patrick J. Charles is the author of Historicism, Originalism and the Constitution: The Use and Abuse of History in American Jurisprudence and The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court as well as numerous articles in law journals. His writings on the history of the Second Amendment have ...
Title:Armed In America: A History Of Gun Rights From Colonial Militias To Concealed CarryFormat:HardcoverDimensions:555 pages, 9.27 × 6.37 × 1.66 inPublished:January 23, 2018Publisher:Prometheus BooksLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:1633883132

ISBN - 13:9781633883130


Read from the Book

IntroductionTo say the history of gun rights is contentious would be an understatement. It is a history that has become guided by political ideology and cultural attitudes more so than facts. With the advent of the Internet and the proliferation of “fake news,” it is not surprising that the history of gun rights, or the history of any subject for that matter, is undergoing a factual crisis. What makes the history of gun rights unique is that the dispute has been ongoing for four decades. The point to be made is that what is often characterized as the history of gun rights is not really history at all, at least as understood by historians. Rather, it is a historically based narrative that is researched, written, and disseminated with two objectives in mind. The first is to reinforce the political and cultural views of the gun-rights community. The second is to convince those outside the community, and hopefully the courts in the process, that the history of gun rights is not all that different from other constitutional rights, such as the First Amendment freedoms of speech, assembly, and a free press.This brief synopsis on the history of gun rights, although intellectually critical, is not something that I write because I am anti-gun, anti-Second Amendment, associated with communism or socialism, unfamiliar with firearms, or some other negative stereotype used in contemporary gun-rights literature to “pigeon hole” anyone who does not wholly subscribe to the tenets of gun-rights theology. My intention is solely to write a history in a manner that adheres to accepted historical methodology and objectivity norms. What this otherwise means is a history that is written in a manner that—to borrow from late historian Barbara W. Tuchman—stays “within the evidence.” A historian should never “invent anything, [not] even the weather.”For almost a decade, I have researched, written, debated, and discussed the history of gun rights, as well as the potential legal ramifications of said history. Over that time, I must admit that my attitude on the subject has changed. Initially, I viewed the history of gun rights with a sense of intellectual idealism, or one might say intellectual naïveté. I believed that most of the legal academics that took part in framing this history did so because they were interested in learning about the past for the sake of learning about the past, and therefore were searching to find objective truths. It was with this intellectual idealism that I wrote my first book on the subject.The book, as well as my interest in the history of gun rights, was stimulated by the United States Court of Appeals for the District of Columbia’s 2007 decision Parker v. District of Columbia, where a 2–1 majority held that the history surrounding the Second Amendment’s ratification conveys that the right to “keep and bear arms” was understood by the Founding Fathers to protect an individual right to own common-use weapons for use outside of the militia. Although I was just a law student at the time, and I must admit ill-prepared to fully grapple with all the legal complexities of the opinion, my background, training, and education on the history of the American Revolution and Early Republic led me to conclude that the historical analysis in the decision reflected one of three things: I was either completely misinformed on the history of the American Revolution and Early Republic, there was a sublayer of gun-rights history virtually unknown to historians and therefore the general public, or the historical pronouncements in the opinion were inaccurate.In order to test the accuracy of the Parker court’s historical pronouncements, I read every primary source and secondary source on the ratification of the Second Amendment that I could find. This historical examination, while enlightening and informative, did not provide me with much closure other than the sense that the Second Amendment was tied to the larger constitutional debate over a federalized militia. Unsatisfied, I postulated another approach to test the Parker court’s central historical pronouncement. If, in fact, the court was correct that the Founding Fathers understood the term “bear arms” to mean carry arms, there would be plenty of examples in late-eighteenth-century literature. In the end, my historical examination turned up nothing of substance to support the Parker court’s central historical pronouncement. In almost every instance, the terms “bear arms” was used in a distinctive military context. While there were indeed a few outliers that used the term “bear arms” broadly, there was nothing in them to firmly suggest that “bear arms” was referring to the general carrying of arms for non-military-related purposes.Still, I thought that there surely had to be something more in the evidentiary record that supported the Parker court’s historical pronouncements, and I postulated a legal-centric linguistic approach to the historical problem. Given that the Constitution and Bill of Rights were for all intents and purposes legal documents, drafted, debated, and amended by some of the late-eighteenth-century’s greatest legal minds, then surely the language used to comprise the Second Amendment would be found in the very laws governing eighteenth-century Americans. For three months, I was immersed in eighteenth-century law books. Upon finishing my research, I came to two historical conclusions: in eighteenth-century militia laws, all of the language that comprised the Second Amendment—“well-regulated militia,” “necessary to the security of a free state,” “bear arms,” and “keep arms”—appeared regularly. Conversely, in all the other eighteenth-century laws, including the laws pertaining to crime, self-defense, weapons, and hunting, none of the language that comprised the Second Amendment was present—not even different variants of the term “bear arms”—i.e. “to bear arms”, “bearing arms,” etc. Even more telling was the fact that not one eighteenth-century legal commentator or one eighteenth-century legal case used the term “bear arms” or any variant of the terms to describe the act of carrying arms or using arms in the act of self-defense. These findings led me to conclude that the Second Amendment was neither legally intended nor legally understood by the Founding Fathers as protecting a right to armed individual self-defense. Rather, the Second Amendment was intimately tied to service in a well-regulated militia, and the political history surrounding the militia, particularly from the late eighteenth century to the early nineteenth century, further supported this conclusion.It was during the process of organizing my historical findings into a book manuscript that the Supreme Court of the United States granted certiorari in the Parker case and ultimately ruled in favor of the armed individual self-defense interpretation, albeit by a slim 5–4 majority. Like the Parker court, the Supreme Court’s decision, docketed as District of Columbia v. Heller, was centered on history in law. What immediately stood out from the decision was the majority’s linguistic analysis. With only a few working examples, the majority agreed that the minority usage of the term “bear arms” was the majority usage, and the majority usage was somehow the minority usage. What also stood out was the manner in which the majority explained away the Second Amendment’s prefatory language, as if the Founding Fathers had included it as merely a visual aesthetic.In the months that followed, I modified the manuscript to include the Supreme Court’s opinion in Heller, and, because the Supreme Court would eventually be faced with a case on Second Amendment incorporation—that is, whether the Second Amendment applied equally to the federal and state governments—I predicted that the historical dispute over the meaning and scope of the Second Amendment was far from over and would perhaps be corrected by a later court. Until that time, state and local government firearms controls were immune from the Heller opinion.Once the book was complete, I became curious about another historical pronouncement made by the Heller majority—that the English antecedents of the Second Amendment, particularly Article VII of the 1689 English Declaration of Rights, was understood as conferring a right to armed individual self-defense. Given my previous undergraduate exposure to the history of Stuart England, the history surrounding the English Declaration of Rights was a subject I was familiar with. Still, in striving for historical objectivity and accuracy, I reached out to historians who specialized in Stuart England and seventeenth-century English intellectual thought. With their guidance, much like I had when researching origins of the Second Amendment, I read every source that was available pertaining to the English Declaration of Rights and compared my findings with what the Heller majority historically pronounced. What I found was that the actual history of the English Declaration of Rights and the history embraced by the Heller majority were far removed from one another. They were not even close, and the reason for the historical divide was the works of two influential scholars, Joyce Lee Malcolm and Stephen P. Halbrook, both of whom maintain ties to the National Rifle Association (NRA).Page by page, line by line, footnote by footnote, I delved into the relevant historical material written by Malcolm and Halbrook, and in the process found a number of errors. By and large, Malcolm’s and Halbrook’s errors were due to their failure to fully adhere to accepted historical methodologies. Historical texts were not fully contextualized, broad historical claims were made with little supporting evidence, historical research and historical analysis were conducted for the sake of conducting a modern legal thought experiment, not uncovering the past nor accepting the past on its own terms, and so forth, and so forth. At times, Malcolm and Halbrook made historical claims without any supporting evidence, such as Malcolm’s claim that James II sought to use the 1671 Game Act to disarm all of England or Halbrook’s claim that the Second Amendment was drafted in response to the disarmament that took place during the Revolutionary War.The alarming gravity of these historical errors were the impetus for my next two publications, both of which concluded that the history of the Second Amendment, that is an objective and thoroughly research history of the Second Amendment, did not pass the constitutional test for incorporation. This line of argument, as well as the historical research and historical analysis supporting it, ended up being basis for an amicus brief when the Supreme Court was presented with a Second Amendment incorporation case. Docketed as McDonald v. City of Chicago, the Supreme Court ultimately incorporated the Second Amendment, and did so by affirming most of the historical pronouncements made by the Heller majority, but not without Justice Stephen Breyer adopting my legal argument and writing a scathing dissent on the use and abuse of history.In the months immediately following McDonald, as I witnessed lawyer after lawyer, and legal scholar after legal scholar, most of whom were paid for or employed by gun-rights advocacy organizations, continue to distort the history of the Second Amendment, my intellectual idealism eventually shifted to intellectual realism. The history of gun rights was not based on adhering to accepted historical principles, such as historical objectivity, the search for the historical truth, or a scholarly exchange of ideas. Rather, the history of gun rights was principled on legal advocacy, political activism, and in the process expanding the meaning and scope of the Second Amendment as broadly as possible.For a brief time, given the dishonest nature of the subject, I considered foregoing any additional historical research, writings, debates or discussions on the history of gun rights. Why continue to take part in an academic discussion if your opponents and critics do not adhere to the same academic norms and methodological standards? Why continue to search for historical truth if your opponents and critics do not acknowledge their errors? Before making a decision I spoke with some legal and historical colleagues. What I took away from these discussions was that if I turned my back on the history of gun rights I would be turning my back on arguably the principle reason I wanted to be a historian in the first place—protecting history and facts from myth and distortion.My post-McDonald publications on the history of gun rights were written in line with this guiding principle. In publication after publication, I tested some of the most common historical pronouncements made by gun-rights scholars. In virtually every instance, the historical evidence led to one of two conclusions. The historical pronouncements were either ill-founded or based on rudimentary research methods. The findings in my post-McDonald publications led me to examine when and how such unsupported historical pronouncements came into existence. Over the same period of time, although I was (and remain) extremely critical of the Heller majority’s acceptance of these unsupported historical pronouncements, as a legal theorist I endorsed Heller’s core holding—armed individual self-defense in the home with common-use weapons. In my mind, although the impetus for the Second Amendment’s ratification was not armed individual self-defense, as a matter of history in law, it is undisputable that the castle doctrine was a fixture in late-eighteenth-century jurisprudence. This fact, accompanied by a long tradition of firearms ownership and use, was in my mind historically sufficient to jurisprudentially recognize a right to armed self-defense in the home.As the 2014 elections approached, putting the politics of gun rights front and center, I developed an academic interest in the politicization of gun rights. How did the Supreme Court’s decisions in Heller and McDonald affect the public and political discourse? How did the concept of gun rights become politically aligned with conservatism? And how did the view of Second Amendment absolutism—the belief that any regulation, no matter how minor, on the ownership, use, or availability of firearms is an unconstitutional infringement of the right to arms—become prevalent in the public and political discourse?Searching for the answers to these questions only led to more questions, and more questions, to the point that I identified a large gap in the history of gun rights. No historical study, other than literature and publications distributed by gun-rights organizations, had fully explored the political development of gun rights, as well as their evolution, within the American discourse. Indeed, a number of independent studies claimed that the modern gun-rights movement was born out the turbulent 1960s. However, within these studies there was considerable lack of primary source material, and the secondary sources relied upon were not all that historically convincing from a methodological standpoint. Equally concerning in these studies was how decades of history were easily glossed over in just a few pages.Sensing something was historically amiss, I began testing these claims, looking to identify when, how, and why gun-rights politics began to develop. Instead of searching for evidence in the 1960s and working backward, I started at the mid-nineteenth century and worked forward. This allowed me to better identify any ideological, social, and cultural changes that took place in either the public, political, or legal discourse. I began my research in the most widely circulated sportsmen, hunting, and shooting magazines and journals of late nineteenth century and early twentieth century and expanded my research to manuscript collections, newspapers, and more widely circulated magazines and journals. The breadth of source material available was astounding. Based on the overall substance within this source material it was clear that gun-rights politics and rhetoric developed much earlier than the 1960s. It was not as early as the American Revolution, as gun-rights scholars have claimed, but it was most assuredly a century earlier than the independent studies identified. Also overlooked was what prompted the first organized gun-rights movement, the political effectiveness of this movement, and its rise within American politics.The information and analysis within this book are largely based on these and other historical findings that I have studied over the last two years, as well as almost a decade of historical research on the origins and development of the right to arms. The book starts with the current state of gun rights in American society and then traces the history of the right to arms from its English origins to the ratification of the Constitution and the Bill of Rights to the Reconstruction Era, and so forth and so forth. Given the nearly four-decade debate over the Founding Fathers’ conception of the right to arms, chapters 2 and 3 outline the competing historical narratives and explain why the historical narrative eventually accepted by the Supreme Court majority in Heller is methodologically and factually deficient. The remaining chapters move beyond this four-decade historical debate, and instead focus on the transformation of the right to arms and the development of gun rights in American society from the nineteenth century to the present.While I have no doubt that the current political state of gun rights will lead many to use the historical findings within this book to advocate for gun control and against gun rights or to advocate for gun rights and against gun control, this is not the purpose for which the book was written. Its purpose is merely to provide a thorough history on the evolution of gun rights—one that helps the general public, politicians, academics, lawyers, judges, gun-rights activists, and gun-control activists alike understand how American society arrived at the point we are at today—and hopefully encourage my academic colleagues, critics, opponents, and the American people to take part in a more informed discussion on the subject.

Editorial Reviews

“Impeccably sourced and including useful illustrations, Armed in America delves into the complete history of American gun rights, republican virtue, and militia ideology and offers a keen critique of the NRA’s highly influential rhetoric and stance…. This thorough, clarifying volume should be displayed prominently and recommended for coverage of this hot-button subject. In the never-ending battle over gun rights, the public safety side now has a go-to source for facts about the Second Amendment.”—Booklist“Meticulous, objective, and captivating. The history of gun rights is constantly being exploited and manipulated by self-interested forces for political gain. Armed in America finally sets the record straight.” —Louis Klarevas, author of Rampage Nation: Securing America from Mass Shootings   “Others have written on the Second Amendment, but no account provides such a detailed, clear-headed, and deep analysis of the amendment’s origins, construction, and interpretation, including much new history and evidence. An important, valuable, and highly readable work that does much to clarify the ongoing debate.” —Robert J. Spitzer, Distinguished Service Professor of Political Science, SUNY Cortland, author of Guns across America and The Politics of Gun Control   “Patrick Charles’s historical work is already central to many areas of Second Amendment law—scholars, lawyers, and judges all rely on him. Armed in America is his most comprehensive work yet, and draws attention to some of the most fundamental disagreements, misunderstandings, and misrepresentations in the gun debate. This will be required reading for anyone involved or interested in the gun debate.” —Joseph Blocher, Professor of Law, Duke Law School"Provides solid history that is welcome in our current political atmosphere. An evenhanded book about a controversy that will not die.” —Kirkus Reviews“A scrupulously documented survey of gun rights and gun regulations spanning from ninth-century England to twenty-first century America. Full of fresh and surprising details, and unflinching in its analysis, Armed in America provides incisive new perspectives for any serious student of the right to keep and bear arms.” —Darrell A. H. Miller, Melvin G. Shimm Professor of Law, Duke Law School