Our Founding Fruitcakes?

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10 Responses

  1. meep says:

    To be fair to them, what the Founding Fathers were likely afraid of is becoming a subject state like Ireland. Yes, the UK was the most democratic state in the world at the time, with the most freedoms and rights for its citizens, but the image of the put-upon Irish was well known in the American colonies and was considered their worst-scenario fate. It mattered not that British citizens had various freedoms and rights if it turned out the UK decided you weren’t a citizen.

    This is irrelevant to the point you’re making about executive power, but it makes the Founders look less nutty. They had a good picture where subjugation to the UK could end up, and they didn’t like it one bit.

  2. Bruce says:

    Meep, that’s a really good point. My title is intentionally a little provocative, but I do think it’s a bit of a puzzle why the Founders decided to take up armed revolt against their country. Some of them may have had the Irish example in mind (I distantly recall reading something about this), but on the other hand, one of the complaints listed in the Declaration is that Britain refused to impose English law on Quebec after taking it over, and instead left it as a festering outpost of Catholicism, right on the colonies’ door. So the plight of Catholic Ireland may not have resonated as much as it could have. I think for many, the actions of a distant government over which they had little influence fed into conspiracy theories concerning corruption in London that were gaining wide acceptance. Of course, that doesn’t explain *why* those theories were gaining acceptance; it just pushes the mystery one level down.

  3. Simon says:

    For example, should we continue to take the Founders’ fear of executive power seriously?

    I was under the impression that of late, the left wanted to take that fear even more seriously.

  4. Bruce says:

    The great thing about this issue is that there is something in it for everyone. If the answer on executive power is “yes, we should continue to be very suspicious of unchecked executive authority,” then does that mean we must also be adamantly opposed to attempts to restrict the keeping of rifles and other armaments by individual citizens — a right that may have made more sense twelve years after General Gage’s infamous attempt to round up the stores kept in Lexington and Concord?

  5. Tom says:

    In short: Yes. It’s high time the left started according the Second Amendment the same status as the rest of the Bill of Rights.

  6. Simon says:


    Your comment about the Second Amendment might make more sense if the Second Amendment was adopted in direct response to the experience of the war of independence, rather than codifying a common-law right that was almost six centuries old before the ink was dry on the Declaration of Independence.

  7. Bruce says:

    Simon, there’s a lot of common law out there. How come only some of it made it into the Constitution?

  8. Bruce says:

    Also, I’m a little skeptical of the idea that there was a common-law right to keep large caches of arms safe from the King’s troops and to go parading in the streets with them; but I admit I haven’t read a whole lot of 12th-century English court decisions.

  9. Simon says:


    The right stems from the 1181 Assize of Arms, promulgated by Henry II, which not only permitted, but required the keeping and bearing of arms. Its adoption means the right to keep and bear arms technically predates the common law, and makes it a contemorary of the formal adoption of the jury trial in 1179 and the creation of the circuit courts, organized in 1176.

    As to why not every element of the common law was codified into the Constitution, the Ninth Amendment makes plain – in its injunction not to disparage rights not protected by the Constitution – that not every right must be protected by the Constitution. The Framers did not share the modern liberal’s assumption that everything must be protected from the democratic process by constitutionalizing it; they sought only to create a structure and to protect in the Constitution only those freedoms implicit in the concept of ordered liberty.

  10. Bruce Boyden says:

    Interesting. Here’s the full thing. I’m no expert on this era, but the Assize to me looks only like a command to keep certain arms, and not a right to keep and bear arms even if the King thinks otherwise. Take a look at article 4, which requires that the arms and armor be borne “in [King Henry’s] service according to his command and in fealty to the lord king and his kingdom.” Article 4 also makes the equipment in question inalienable. (Is that part of the common law? Should we read it into the Second Amendment?) And article 6, which forces burgesses to sell or give away extra arms they don’t need. (Same question — that would be an interesting gun control measure.) Article 8 prohibits export. Article 9 mandates an enumeration of the various arms people keep (sounds good to me!). Article 10 promises “vengeance” against those not keeping the right equipment. Article 12 prohibits the carrying of wood. (Huh?)