21 July 2009

William Blackstone and the Second Amendment

I had an interesting banter with someone who purports to be a "Second Amendment Scholar" who said that Blackstone 'called it the "fifth auxillary right" of Englishmen' in reaction to my question about "where is Self-defence mentioned in the Second Amendment?"


Blackstone being Commentaries on the Laws of England. The four volumes of the Commentaries were first published between 1765 and 1769 in Oxford and first issued in an American edition in 1771.

Blackstone would be appalled to be cited as an authority in this matter and even more appalled in how he is used in the DC v. Heller opinion for the reasons I will mention in this.

I can point out a multitude of points why citing Blackstone is incorrect.

First off, it is a text book, which means it isn't even law in England. Never has been and never will. The "Second Amendment Scholar" should have read the whole wikipedia article before making a dumb statement about its being used as an authority by the Supreme Court: the United States Supreme Court quotes from Blackstone's work whenever they wish to engage in historical discussion that goes back that far (Colonial times), or further.

2) The title and dates of publication give you another two, Blackstone's Commentaries on The Laws of England (1769): unless he was psychic, he wasn't writing about the Second Amendment. He is also commenting on English Common law, not US Constitutional law.
A correlary to (2) is that Blackstone died on 14 February 1780, which means he didn't physcially take part in the debates regarding the US Constitution. So, while he is an example of an opinion on the state of the Common law in pre-Revolutionary times, he isn't a US Constitutional authority.

The Court’s reliance on Blackstone’s Commentaries on the Laws of England is unpersuasive for the same reason as its reliance on the English Bill of Rights. Blackstone’s invocation of “‘the natural right of resistance and self preservation,’” ante, at 20, and “‘the right of having and using arms for self-preservation and defence’” ibid., referred specifically to Article VII in the English Bill of Rights. The excerpt from Blackstone offered by the Court, therefore, is, like Article VII itself, of limited use in interpreting the very differently worded, and differently historically situated, Second Amendment.
Justice Stevens's dissent in Heller, p.30

Add in that self-defence as a topic is discussed in a different section: Blackstone's Commentaries on the Laws of England, Book the Third, Chapter the First: Of the Redress of Private Wrongs by the Mere Act of Parties p.3

I get into this subject later in this post.

3) Article VI puts paid to any claim of Blackstone having any bearing upon the Second Amendment. For those not in the know. this is the text of Article VI:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

That means the British Bill of Rights, Declaration of Independence, Articles of Confederation, or a Philadelphia phone book from 1776 (if one existed) aren't constitutional authorities and neither is Blackstone. Unless one is talking about a question of common law, which the Second Amendment ISN'T, Blackstone cannot be cited as an authority. Did Scalia have some third grader or his grandchild write DC v. Heller?.

Also, foreign law cannot be used as a holding, precedent, or to bind an outcome of a legal decision interpreting the Constitution. Strangely, the use of foreign law as being a no-no is something Scalia claims to believe, but not in this instance for some odd reason. Likewise, using a pre-revolutionary law textbook is a no-no as well: especially when trying to decipher the Constitution.

4) Most common law countries don't even allow lesser self-defence items (e.g. pepper spray), let alone firearms. Britain has had laws regarding weaponry for some time. Examples of past regulation of Arms in England, The Assize of Arms from 1181, The Assize of Arms from 1252, The English Archery Law of 1363, The Border Reivers were forbidden to carry weapons by James I (England, VI of Scotland), James II "caused several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law" from BOR 1689, the Act of Proscription of 1746.

As early as the second year of Edward III., a statute was passed prohibiting all persons, whatever their condition, “to go or ride armed by night or by day.” And so also at common law the “going around with unusual and dangerous weapons to the terror of the people” was a criminal offence.

Even sillier is the belief that armed self-defence was acceptable at the time the Constitution was written. As anyone who knows the British law of self-defence knows, even the military can be called to account for excessive force. If there were a right to self-defence at that time, the soldiers in the Boston Massacre would not have been brought to trial for murder! I mean 9 soldiers surrounded by an ugly crowd--what other course of action did they have except shoot? Also, why didn't the shipowners shoot the raiders during the Boston Tea Party?

Furthermore, The Bill of Rights of 1689 states that:

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law

Got that as allowed by law?

So, again, don't look to Common law for guidance on the Second Amendment. Especially since you are then stuck with how other common law countries, in particular England, have used and interpreted that source: e.g., Tony Martin.

Also, arms means weapons of all sorts, not just firearms. Hence "suitable to their conditions" which means a toff can have a sabre and a pistol and a peasant a pike. So, longbows, swords, etcetera have been regulated by English law since time immemorial: usually for ensuring the common defence.

St. George Tucker wrote this regarding the English Bill of Rights in his 1803 edition of Blackstone's Commentaries:

In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

It is pretty obvious that Blackstone would have been aware of the limitations to the "right to keep and bear arms" and know that it was not related to self-defence. The linking of self-defence to the Second Amendment is a very recent trend which comes from the "new scholarship".

I know that I said something about taking DC v. Heller to the Privy Counsel in a previous post, but only a well educated US court is capable of rendering a judgement on the Second Amendment. I would imagine the Privy Counsel saying something such as that the Second Amendment is a US Constitutional question, which it is. Justice Stevens also correctly points out in his Heller dissent that any look at British law is totally different from US law (which doesn't stop me from wanting to take DC v. Heller to the privy counsel). But I don't really want to digress into that as I have more than enough posts about how the Second Amendment fits into the structure of the US Constitution.

Also, to say that arms are necessary for self defence neglects Blackstone's writings concerning the law of self-defence which are:

THE defence of one's self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affrayd . For the law, in this case, respects the passions of the human mind; and (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say, to what wanton lenghs of reapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defence therefore as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away be the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay even for homicide itself: but care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor.

Blackstone's Commentaries on the Laws of England, Book the Third, Chapter the First: Of the Redress of Private Wrongs by the Mere Act of Parties p.3

In short, as I have also said in previous posts, one can only use enough force to resist the attack and not become the aggressor. In fact, one should back down if possible rather than escalate to violence if one follows the common law of the time.

Statutes have recently changed the law of self-defence to allow for deadly force, but that is a statutory change and not a change in the common law. I have posted more than enough about the Common law doctrine of self-defence in other posts.

Going beyond self-defence, citing Blackstone as an authority would also require that you give deference to the proeme of the Second Amendment according to his rules of statutory interpretation.

If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point.

The law which relates to the same point as the Second Amendment is the US Constitution itself and in particular Article I, Section 8: To provide for organizing, arming, and disciplining, the militia.

That would mean that you would have to go with it being a civic right (that is only for the militia) since deference must be given to the proeme (A well regulated militia, being necessary to the security of a free state). You would also have to look at other provisions in the Constitution that addressed the militia, which there are. Scalia decided to pick and choose his authority and sources ignoring this portion of the common law doctrine, misinterpreting the law of self-defence--which isn't even mentioned in the Second Amendment, and ignoring the militia clauses in the main text of the Constitution.

In fact, Scalia violates another dictate found in Blackstone: stare decisis.

A judge is “bound by oath to decide according to the law of the land,” William Blackstone, Commentaries on the Laws of England. Blackstone notes that “it is an established rule to abide by former precedents,” that the scales of justice be kept steady and “not liable to waver with every new judge’s opinion.” It is a good thing, to achieve that end, the judge is “sworn to determine not according to his own private judgment, but according to the known laws and customs of the land.” (Blackstone at 117)

Stare Decisis is not absolute. Blackstone wrote, “[T]his rule admits of exception, where the former determination is most evidently contrary to reason” (Blackstone at 118). In such instances, it is incumbent on the inferior judge to decide pursuant to his Oath, and not to the faulty and irrational opinions of men. The DC. v. Heller chain of decisions is contrary to when an exception can be made to stare decisis as it was the opinion of the people and the faulty reliance upon Blackstone (and other irrelevant authorities).

In fact, the Heller decision is flawed from a stare decisis viewpoint in that there is no valid reason to overturn US v. Miller, 307 U.S. 174 (1939) other than public misinterpretation of the Second Amendment and a need to state the holding in idiot proofed modern English, which Justice Stevens did. The new scholarship is all over the place since it once talked about the militia, now we are seeing it being talked about in the context of self-defence for which there is no basis in the US Constitution.

I mean do a search for the term self-defense in one of the online versions of the constitution It ain't there!. Common defense is and self incrimination is, but not self-defence.

There especially is not any authority to say the Second Amendment covers the right of self-defence using Blackstone.

The question asked by Patrick Henry was "When this power is given up to Congress without limitation or bounds, how will your militia be armed?" when the Second Amendment was being debated.

He wasn't talking about self-defence! In fact, none of the quotes in the ratification debates deal with anything other than the question of Federal power under article I, Section 8:

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

For more quotes go here. The relationship between a Federal Army and state militias was what was being discussed at the time, not self-defence.

Which gets back to my point that The Book is called Blackstone's Commentaries on the Laws of England and was published roughly 20 years before the Constution and before the war for American Independence. Blackstone was dead when the Constution was debated and had no idea of Article I, section whatever or the Second Amendment. That means you can't place the Second Amendment in the context of his commentaries: it is a US Constitutional law issue.


Blackstone would have given deference to the prior court decisions under the doctrine of stare decisis and weight to the proeme (A well regulated militia, being necessary to the security of a free state).

Blackstone would be appalled to see his work trashed by Scalia in the DC v. Heller decision since this decision doesn't follow Blackstone in any sense.

Ya can't pick and choose what part is useful if you want to say he is an authority; well, with the exception where he is clearly irrelevant, which he is in regard to the Second Amendment jurisprudence.

I am not sure how Blackstone would have deferred to the legislature, which the Heller courts failed to do as well.

Justice Stevens's opinion is a much better opinion from a legal standpoint: especially if one wished to use Blackstone as a source. Justice Stevens follows stare decisis, gives weight to the proeme, and did not give weight to "the faulty and irrational opinions of men".

As Justice Stevens said.
The majority cannot seriously believe that the Miller Court did not consider any relevant evidence; the majority simply does not approve of the conclusion the Miller Court reached on that evidence. Standing alone, that is insufficient reason to disregard a unanimous opinion of this Court, upon which substantial reliance has been placed by legislators and citizens for nearly 70 years.