In an earlier post, here, I alluded to the Magna Carta as being in the minds of our founding fathers when they wrote the 2nd Amendment.
That begs the question: "What is the Magna Carta?"
Enormous parts of the below are copied either in whole, or in part, or are paraphrases of, or inspired by the work of, Lysander Spooner, An Essay on Trial by Jury, Juries Judges of the Justice of Laws. (circa 1848)
The below is merely a re-statement of some of Spooner's thoughts, and their application to the 2nd Amendment of the United States Constitution.
Around the time of the Magna Carta, the king was, constitutionally, the entire government; the sole legislative, judicial and executive power of the nation. The executive and judicial officers were merely his servants, appointed by him, and removable at his pleasure. In addition to this, “the king himself often sat in his court, where he heard causes, and pronounced judgment; and though he was assisted by the advice of other members, it is not to be imagined that a decision could be obtained contrary to his inclination or opinion.” Judges were in those days, and afterwards, such abject servants of the king, that “we find that King Edward I. (1272 to 1307) fined and imprisoned his judges, in the same manner as Alfred the Great, among the Saxons, had done before him, by the sole exercise of this authority.”
Parliament, so far as there was a parliament, was a mere council of the king. It assembled only at the pleasure of the king; sat only during his pleasure; and when sitting had no power, so far as general legislation was concerned, beyond that of simply advising the King.
There was no House of Commons at that time, and the people had no right to be heard, unless as petitioners.
The king was, therefore, constitutionally the government; and the only legal limitation upon his power seems to have been simply the Common Law, usually called “the law of the land,” which he was bound by oath to maintain; (which oath had about the same practical value as similar oaths have always had.) This “law of the land” seems not to have been regarded at all by many of the kings, except so far as they found it convenient to do so, or were constrained to observe it by the fear of arousing resistance. But as all people are slow in making resistance, oppression and usurpation often reached a great height; and, in the case of John, they had become so intolerable as to enlist the nation almost universally against him; and he was reduced to the necessity of complying with any terms the barons saw fit to dictate to him.
It was under these circumstances, that the Great Charter of English Liberties (Magna Carta) was granted. The barons of England, sustained by the common people, having their king in their power, compelled him, as the price of his throne, to pledge himself that he would punish no freeman for a violation of any of his laws, unless with the consent of the peers – that is, the equals – of the accused.
The barons and people having obtained by the charter all the liberties they had demanded of the king, it was further provided by the charter itself that twenty-five barons should be appointed by the barons, out of their number, to keep special vigilance in the kingdom to see that the charter was observed, with authority to make war upon the king in case of its violation. The king also, by the charter, so far absolved all the people of the kingdom from their allegiance to him, as to authorize and require them to swear to obey the twenty-five barons, in case they should make war upon the king for infringement of the charter.
Being aware of the foregoing, the founding fathers realized “that the only security against the tyranny of the government lies in forcible resistance to the execution of the injustice; because the injustice will certainly be executed, unless it be forcibly resisted.”
Since, then, this forcible resistance to the injustice of the government is the only possible means of preserving liberty, it is indispensable to all legal liberty that this resistance should be legalized.
This right of resistance had to be recognized “by the constitution of the United States, as a strictly legal and constitutional right, enforced by the provision that “the right of the people to keep and bear arms shall not be infringed.” This constitutional security for “the right to keep and bear arms,” implies the right to use them – as much as a constitutional security for the right to buy and keep food would have implied the right to eat it. The constitution, therefore, takes it for granted that the people will judge of the conduct of the government, and that, as they have the right, they will also have the sense, to use arms, whenever the necessity of the case justifies it.”
It was well understood that the common people, who were well armed, would be a deterrent against an oppressive government.
I believe the above is what our founding fathers knew of, and had in mind, when they wrote the 2nd Amendment to the United States Constitution.
hadji
That begs the question: "What is the Magna Carta?"
Enormous parts of the below are copied either in whole, or in part, or are paraphrases of, or inspired by the work of, Lysander Spooner, An Essay on Trial by Jury, Juries Judges of the Justice of Laws. (circa 1848)
The below is merely a re-statement of some of Spooner's thoughts, and their application to the 2nd Amendment of the United States Constitution.
Around the time of the Magna Carta, the king was, constitutionally, the entire government; the sole legislative, judicial and executive power of the nation. The executive and judicial officers were merely his servants, appointed by him, and removable at his pleasure. In addition to this, “the king himself often sat in his court, where he heard causes, and pronounced judgment; and though he was assisted by the advice of other members, it is not to be imagined that a decision could be obtained contrary to his inclination or opinion.” Judges were in those days, and afterwards, such abject servants of the king, that “we find that King Edward I. (1272 to 1307) fined and imprisoned his judges, in the same manner as Alfred the Great, among the Saxons, had done before him, by the sole exercise of this authority.”
Parliament, so far as there was a parliament, was a mere council of the king. It assembled only at the pleasure of the king; sat only during his pleasure; and when sitting had no power, so far as general legislation was concerned, beyond that of simply advising the King.
There was no House of Commons at that time, and the people had no right to be heard, unless as petitioners.
The king was, therefore, constitutionally the government; and the only legal limitation upon his power seems to have been simply the Common Law, usually called “the law of the land,” which he was bound by oath to maintain; (which oath had about the same practical value as similar oaths have always had.) This “law of the land” seems not to have been regarded at all by many of the kings, except so far as they found it convenient to do so, or were constrained to observe it by the fear of arousing resistance. But as all people are slow in making resistance, oppression and usurpation often reached a great height; and, in the case of John, they had become so intolerable as to enlist the nation almost universally against him; and he was reduced to the necessity of complying with any terms the barons saw fit to dictate to him.
It was under these circumstances, that the Great Charter of English Liberties (Magna Carta) was granted. The barons of England, sustained by the common people, having their king in their power, compelled him, as the price of his throne, to pledge himself that he would punish no freeman for a violation of any of his laws, unless with the consent of the peers – that is, the equals – of the accused.
The barons and people having obtained by the charter all the liberties they had demanded of the king, it was further provided by the charter itself that twenty-five barons should be appointed by the barons, out of their number, to keep special vigilance in the kingdom to see that the charter was observed, with authority to make war upon the king in case of its violation. The king also, by the charter, so far absolved all the people of the kingdom from their allegiance to him, as to authorize and require them to swear to obey the twenty-five barons, in case they should make war upon the king for infringement of the charter.
Being aware of the foregoing, the founding fathers realized “that the only security against the tyranny of the government lies in forcible resistance to the execution of the injustice; because the injustice will certainly be executed, unless it be forcibly resisted.”
Since, then, this forcible resistance to the injustice of the government is the only possible means of preserving liberty, it is indispensable to all legal liberty that this resistance should be legalized.
This right of resistance had to be recognized “by the constitution of the United States, as a strictly legal and constitutional right, enforced by the provision that “the right of the people to keep and bear arms shall not be infringed.” This constitutional security for “the right to keep and bear arms,” implies the right to use them – as much as a constitutional security for the right to buy and keep food would have implied the right to eat it. The constitution, therefore, takes it for granted that the people will judge of the conduct of the government, and that, as they have the right, they will also have the sense, to use arms, whenever the necessity of the case justifies it.”
It was well understood that the common people, who were well armed, would be a deterrent against an oppressive government.
I believe the above is what our founding fathers knew of, and had in mind, when they wrote the 2nd Amendment to the United States Constitution.
hadji
