The right to keep and bear arms preceded the U.S. Constitution, as our Founding Fathers “propounded” the right but did not create it. They enshrined it via the Bill of Rights, all the while knowing the origin of the right itself was to be found in “the Laws of Nature and of Nature’s God.”
Thomas Jefferson learned these things from Common Law commentators like William Blackstone. It was Blackstone who so clearly showed that the right to be armed was a natural right “that common law might propound but did not create and could not revoke.”
Jefferson was by no means alone. In her book To Keep and Bear Arms: The Origins of an Anglo-American Right, Joyce Lee Malcolm shows that the Founders and their contemporaries were of such a mind that some of them did not even push for a Bill of Rights: they saw no need to do so because the preexistence of the right to keep and bear arms was so obvious to them.
Even after the Bill of Rights was added to the Constitution, learned men like George Nicholas–a member of the Virginia ratifying convention–wrote: “A bill of rights is only an acknowledgement of the preexisting claim to rights in the people. [These rights] belong to us as much as if they had been asserted in the Constitution.”
This is critical for our understanding, for there is a growing habit to speak as if the Constitution or its adjoining Bill of Rights created the right to keep and bear arms.
For example, when Justice Richard Posner wrote the majority opinion for the 7th Circuit Court of Appeals decision to strike down the Illinois ban on concealed carry, he suggested, “The Supreme Court has decided that the [2nd Amendment] confers a right to bear arms for self-defense.”
But the message from our Founders and their contemporaries is quite the opposite of this. The 2nd Amendment did not create that right, it only “propounds” and protects a right that existed long before our constitution or Bill of Rights were even a thought in the minds of men.
Follow AWR Hawkins on Twitter @AWRHawkins.