The case for American exceptionalism is
often overstated. It is true that our Constitution, at least when it was first
written, was a revolutionary document, in both senses of the word: it
represented a huge shift in the way that the state was conceived, but also an
attempt to free a citizenry from perceived oppression.
Because of the unique historical circumstances in which it was
written, the Constitution put in place laws that appear to be similarly unique.
However, when looked at in a historical perspective, many of these (such as the
right to free speech) are unique in extent rather than quality: they make a
right that was de facto in early modern England into a de
jure provision.
There is one part of the U.S. Constitution, however, that may well
be totally unique: the Second Amendment.
The 27 words that make up the amendment, “a well regulated militia
being necessary to the security of a free state, the right of the people to
keep and bear arms shall not be infringed,” are perhaps the most controversial,
and perhaps the most misunderstood, in our entire Constitution. I’m not going
to add another interpretation to the hundreds already available. Instead, I
want to look where the amendment came from, and then look at whether it is,
indeed, unique.
The Historical Context
Given the context in which the constitution was written -- that of
a new country keen to free itself from the clutches of an overbearing English
tyranny -- it is strange that the Second Amendment is actually based on English
law. Specifically, the English Bill of Rights of 1689 codified what was
regarded as a natural right to self-defense. This bill essentially limited the
power of the English king to disarm his subjects, after Charles II had tried to
disarm Protestants, whom he viewed as a threat to his power.
Interestingly, the same debate that rumbles on today about the
importance of a “well-regulated militia” dates back to this time. In District
of Columbia v. Heller(2008), the question of whether English Bill of
Rights created a new right, or merely codified an existing one, was tackled.
The Supreme
Court found that the English right at the time of the passing of the
English Bill of Rights was "clearly an individual right, having nothing
whatsoever to do with service in the militia," and therefore predated the
bill.
In any case, by the time the Second Amendment was passed in 1791,
the understanding of the earlier bill had developed. Before the U.S. became
independent, the American colonies had an approach to firearms regulation that
had been inherited from English Common Law. By 18th-century England, for
example, armed travel had been limited to a few well-defined occasions such as
assisting justices of the peace and constables. Members of the upper classes
also had a limited exception to travel with arms. What we would now
consider standard
concealed carry was even more restricted back then, and the city of
London banned public carry of handguns entirely.
In short, the Second Amendment developed from English common law,
and is therefore not unique in a historical context. However, the fact that the
amendment appears in a constitution, and can therefore not be watered down by
successive legislation, means that it has slowly become unique as the laws it
was based on were themselves changed.
The International Context
Another way of assessing the uniqueness of the Second Amendment is
to look at whether there are any other countries that currently guarantee a right
to bear arms in their constitutions. This immediately rules out many countries,
and notably UK, simply because they do not have a written constitution.
Interestingly, the uniqueness of the Second Amendment has made
occasional appearances in political speeches in recent years. Marco Rubio
claimed in aspeech to the
NRA in 2014 that the amendment was unique among modern nation states.
Was he right to say this? Yes, broadly.
Very few constitutions have ever contained an explicit right to
bear arms, and those that do also include restrictions that make them quite
different from the Second Amendment. In a New
York Times op-ed from 2013, Tom Ginsburg and
Zachary Elkins concluded that there are only two countries where a comparable
right is afforded: Mexico and Guatemala.
Here are the relevant clauses in those constitutions:
• Guatemala
Article 38: "The right to own (‘tenencia’) weapons for personal use,
not prohibited by the law, in the place of inhabitation, is recognized. There
will not be an obligation to hand them over, except in cases ordered by a
competent judge."
• Mexico
Article 10: "The inhabitants of the United Mexican States have the
right to possess arms in their residences for their protection and legitimate
defense, except such as are expressly forbidden by law or which have been
reserved for the exclusive use of the Army, Navy, Air Force and National Guard.
Federal law will determine the circumstances, conditions, requirements, and
places in which the bearing of arms by inhabitants will be authorized."
Superficially, these clauses look like the Second Amendment.
However, read them closely and a major difference is apparent: both give
government and/or the judiciary the right to remove arms from its citizens.
The Verdict
The Second Amendment, in contrast to the provisions of the Mexican
and Guatemalan constitutions, explicitly bars the government from infringing the
right to bear arms. In this sense, it is unique: rather than permitting
individuals to bear arms at the whim of the state, this right is regarded as
“natural”, and therefore outside the power of the state.
The strange paradox here is that regarding the right to
self-defense, and by extension the right to bear arms, as a “natural” right is
a philosophical position inherited from England, and that in that country this
right was gradually diminished by hundreds of years of extra legislation. In
this sense, the Second Amendment actually may be regarded as unique in
a historical sense, in that it represents an 18th-century view of human
rights. Of course, it is no less worthy for that: if the right to self-defense
is one inherent to humanity, then it should be protected in every state and
era, irrespective of the views of the government.
http://www.americanthinker.com/articles/2017/12/is_the_second_amendment_unique.html
