Malcolm in the Middle

Falling victim to bogus critics.

National Review Online, September 16, 2002 10:10 a.m. More articles by Kopel about Great Britain gun control and legal history are available here.

Joyce Malcolm's, a professor of history at Bentley College, new book, Guns and Violence: The English Experience, details how the English lost their right to bear arms in the 20th century, and how violent crime has spun out of control — far exceeding American levels — as the British government has forbidden the use of weapons for self-defense. For decades, American antigun advocates have pointed to England as their gun-control utopia. Now it    appears that the most repressive gun laws in the Western world appear to have created a dystopian crime epidemic abetted by a civic culture of passivity and helplessness. The solution of the gun-control movement? Blame the messenger.

In an interview for a Boston Globe review of Malcolm's book, law professor Carl Bogus (formerly a Board member of Handgun Control, more recently an adviser to the Violence Policy Center) claimed that Professor Malcolm's "main thesis has been discredited by other scholars." Well, not really. Let's look at those "other scholars," of whom there are a grand total of three: Michael Bellesiles, Bogus himself, and Lois Schwoerer.

First, Michael Bellesiles gave Malcolm's previous book a very hostile review in The Law and History Review. But since Bellesiles's review — like his other so-called "scholarship" — relies on fabricated "facts" and other frauds, to say that he has "discredited" Malcolm would be like saying that the Tass News Agency "discredited" the Truman/Kennedy/Reagan foreign policy of vigorous anti-Communism.

The second scholar who has attempted to discredit Professor Malcolm is Carl Bogus himself, author of a law-review article titled "The Hidden History of the Second Amendment."

In my own article, "The Second Amendment in the 19th Century," I detail why Bogus's claims in his article on American history are very seriously mistaken. The problem is that his assertions are based on a highly selective and implausible reading of history. For example, Bogus argues that the Second Amendment was entirely the creation of southerners who wanted strong militias to suppress slave revolts; yet he does not even mention that during the constitutional-ratification debates, the first call for an individual-arms right came from the Pennsylvania dissenters. Similarly, Bogus omits the fact that Sam Adams of Massachusetts, who detested slavery, proposed an arms right at the Massachusetts ratifying convention.

Discussing James Madison's draft of the Second Amendment, Bogus writes, "We do not know why Madison chose to draft his provisions precisely this way. He did not explain his thinking in any speech or letter that has come to light." Actually, Madison did explain his drafting choices. The Founding Father's explanation makes it clear that he viewed the 1689 English Declaration of Rights as protecting an individual right to arms, and Madison wanted the American arms right to be broader and more protective of individual rights than was the English version.

In the "Hidden History" article, Bogus also criticizes Malcolm's first book on English history, To Keep and Bear Arms: The Origins of an Anglo-American Right. Bogus's theory is that the 1689 English Bill of Rights did not really guarantee a right of Englishmen to possess firearms, but rather announced that Parliament, rather than the king, would make future gun laws.

Enacted after the Stuarts were overthrown in the Glorious Revolution of 1688, the 1689 English Declaration of Rights stated: "That the subjects which are Protestants may have Arms for their Defence suitable to their Conditions, and as allowed by Law."

Bogus makes the textual argument that the subordinate clause "as allowed by law" recognized parliamentary authority to limit arms ownership. Hence, he asserts that there is no right at all. The Bill of Rights provision is merely an assertion of parliamentary supremacy against the King with regard to arms control.

Yet if parliament were merely asserting its supremacy over gun laws, it could have said so, such as by declaring "That only the Parliament, and not the King, may control the keeping of Arms." Of course, parliament did no such thing. Parliament enacted a "Bill of Rights" affirming the right of all "subjects which are Protestants" (about 98 percent of the population) to "have Arms for their Defence." Plainly, parliament reserved itself the right to enact limits based on a person's "Conditions" — as Henry VIII had done when he (ineffectually and temporarily) barred handgun and crossbow ownership by people below certain income levels. But Bogus goes much further than the text allows; he alleges that because parliament saw the arms right as subject to some limits enacted by Parliament, there was no right at all. This claim is facially implausible — and even more strained and counterintuitive than his argument that the introductory clause of the American Second Amendment ("a well-regulated Militia") destroys the plain meaning of the main clause of the Second Amendment ("the right of the people to keep and bear Arms").

Bogus also addresses English history. He points out, accurately, that the Convention Parliament (which awarded the crown to William and Mary, after the Glorious Revolution) was angry that the deposed King James II had attempted to disarm most of the population. Bogus then infers that Parliament was not really angry about disarmament, but only angry that the King, rather than Parliament, had been in charge of disarming the public. This Bogus argument is utterly implausible if one looks at the history of the reign of James II. Everything that James II did to take arms away from his English subjects was done pursuant to duly-enacted Parliamentary statutes.

Not once did King James II assert that he, rather than parliament, could make the gun laws. Rather, James did nothing more than promote rigorous enforcement of the gun laws made by the Restoration parliaments. Bogus does not provide even one example of any seizure of private arms, or any other disarmament of individuals, by King James II that went beyond the bounds of what parliament's laws authorized.

The only other critic of Malcolm is Lois Schwoerer, author of an article in the Chicago-Kent Law Review, in a special symposium organized by Carl Bogus. Bogus freely admits that he chose the symposium authors not for balance but to challenge the individual-rights interpretation of the Second Amendment. (The symposium was recently published in book form as The Second Amendment in Law and Historyby The New Press, which has published two other books by Violence Policy Center authors, as well as books by authors such as Noam Chomsky, Michel Foucault, Edward Said, and Helen Caldicott.)

One is tempted to dismiss the entire symposium/book, given that its most prominent author — listed by right after editor Bogus — is Michael Bellesiles, and many of the articles not written by Bellesiles rely explicitly on Bellesiles' scholarship. Schwoerer's article, though, cites Bellesiles only in passing.

Much of Schwoerer's article consists of attacking the straw man of "an unrestricted right" to arms. For example, she shows that after the Bill of Rights, laws against commoners using guns were still enforced. Writing in the mid-17th century, the great legal scholar William Blackstone described the English right to arms thus:

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute [the 1689 Declaration of Rights] and it is indeed a public allowance under due restrictions, of the natural right of resistance and self preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

Schwoerer points to Blackstone's recognition of "due restraints" on right. She also claims that the right to arms, in Blackstone's view, exists only "when the sanctions of society and laws are found insufficient to restrain the violence of oppression." This is an absurd misreading. According to this argument, Blackstone believed that as long as the government were free, the government could ban guns entirely. But if the government turned into a tyranny, then Englishmen would have a right to arms. Blackstone would have had to be an imbecile to believe in such a right; for if the English could be disarmed while free, a tyrant would not endanger his own power by suddenly allowing his subjects to possess guns, once his tyranny had (according to Schwoerer) somehow activated the right to arms. This is like having a right to own fire extinguishers, but the right only exists when your home is on fire.

Although readers cannot be expected to study 17th-century parliamentary debates to determine whether Schwoerer or Malcolm is presenting the more accurate picture, there is one easy way to check Schwoerer's credibility: She miscites and distorts the dictionary.

Examining the significance of the word "arms" in the Declaration of Rights, Schwoerer writes:

According to the Oxford English Dictionary, in the seventeenth century, the word meant, among less pertinent things, "instruments of offense used in war"; "Firearms: those for which gun powder is used, such as guns and pistols as opposed to swords, spears or bows"; "defensive or offensive outfit used for war.

Schwoerer then asserts that the use of the word "arms" in the English Bill of Rights signified exclusively military items for national defense. This argument fails under its own terms. Two of the three definitions quoted by Schwoerer do refer to "war." But the middle definition simply says that "arms" are "firearms"; this definition is not limited to a military context.

Moreover, Schwoerer has cut and pasted the dictionary to create a false impression. The second edition of the OEDhas two entries for "arm" as a noun. The first entry is for limbs; the second entry is the one of interest to us. This second entry is divided into five main sections, with Roman numerals. The second entry begins: "I. pl.Defensive and offensive outfit for war, things used in fighting."

Notice what Schwoerer does with this definition. She mistakenly turns an "and" into an "or" ("defensive and offensive outfit"). Rather than listing the main definition first, she lists the main definition third, as if it were the equal of the subordinate definitions. And most importantly, she chops off part of the main definition: "things used in fighting." By deleting "things used in fighting" — which is part of the highest-level definition — she creates the incorrect impression that the quoted definition involved only the military. Schwoerer quoted the part of the definition about "war" and excised the part of the definition about "fighting."

The OEDthen supplies five sub-definitions for definition I. Each of these subdefinitions is preceded by an Arabic numeral. Schwoerer's quotes come from entry 2a:

Instruments of offence used in war; weapons. fire-arms: those for which gunpowder is used, such as guns and pistols, as opposed to swords, spears, or bows. small-arms: those not requiring carriages, as opposed to artillery. stand of arms: a complete set for one soldier.

Again, Schwoerer chopped off an inconvenient part of the definition. Item 2a had said that "arms" are "Instruments of offence used in war; weapons." Schwoerer, however, omits the word "weapons" from her quotation of the definition. By omitting "weapons" she creates a definition exclusively involving "war." Schwoerer then writes:

I suggest that the M.P.'s chose "Arms' to signal that they were not providing a right to the individual subject to have a weapon for the protection of himself, his family, or his house. In a predominantly rural society, in a society that had no police force, many persons no doubt had some kind of weapon — a club, an ax a gun — for those purposes.

In other words, Schwoerer is saying that the Declaration of Rights protects the military only, and not personal weapons, because the OEDdefinition of "arms" includes only instruments for war, rather than the more general "weapons" which could be used for personal defense. But Schwoerer's whole argument is patently false, since the OEDdefinition of "arms" does in fact include "weapons" — although Schwoerer cuts this word from the definition she quotes in her article.

Twice excising definitional language in order to fabricate an artificially narrow definition of arms, Schwoerer further distorts the OEDwhen she writes, "According to the Oxford English Dictionary, in the seventeenth century, the word meant..." Actually, the OEDnever claims that the seventeenth-century meaning of "arms" (in 2A's sense of "weapons") was different from subsequent or prior centuries. Of the 15 subdefinitions of "arms" in the OEDentry, only one is time-limited. (The meaning of "arms" as defensive armor, such as chain-mail, is described as "Now only poet.")

Underneath the definition of "arms" as "weapons," the OEDsupplies eight exemplary usages, from 1300 to 1870. The OEDdoes not claim that the meaning changed between 1300 and the present. Rather notably, the example most closely preceding the drafting of the English Declaration of Rights is this: "1650 T. B. Worcester's Apophth. 97 They were come to search his house for Armes."

Now I have never read "Worcester's Apopth[egmes]," and I don't know who the author "T.B." was, but one may make some reasonable inferences. Writing in 1650, T.B. would have been writing during the English Civil War (1642-1651). During the war, various factions worked to disarm their perceived enemies. "They were come to search his house for Armes" appears to refer to a homeowner being confronted by a group which wants to take away the arms he possesses in his home.

In short, Schwoerer's claims about the OEDare wrong in every respect: The OEDdefines "arms" to include a wide variety of "things used in fighting" — such as "weapons," rather than the more narrow, military-only definition claimed by Schwoerer. Rather than using "arms" in a special sense different from our modern understanding, the seventeenth century understood the word "arms" the same way we do. Indeed, the OED's 17th-century usage example refers to weapons confiscation from a private home (not seizure from an army stockpile or a militia armory) — which was precisely the type of government abuse which led to the consensus about England's need for a Declaration of Rights, and a century later, to the Second, Fourth, and Fifth Amendments to the American Constitution.

Some readers may find in Schwoerer's article a few places where she provides a useful additional perspective on points addressed by Malcolm — although her flagrant misuse of the OEDleads one to doubt her description of more ancient documents. (Note: Schwoerer's article cites the 1989 second edition of the OED, presumably the printed edition. I am also using the 1989 2d edition, in its online version at the History Book Club website.)

Whether the dictionary errors should lead readers to believe that Schwoerer's article is "discredited" might be debatable. It is clear, though, that for Bogus to assert that Schwoerer has "discredited" Malcolm is a grand overstatement.

Benjamin Franklin believed that "A man is defined more by his enemies than his friends." If one can define a scholar by her critics, then the weak reasoning of Joyce Malcolm's lonely critics is further evidence of the strength of her scholarship.

Note: The Globereview, while quite favorable to Malcolm's book, has two errors. First, Malcolm does not say that all guns are banned in England; handguns are banned, and long guns licensed very restrictively, with defensive ownership prohibited. Second, she says she did not call Professor Bogus "just a lawyer."

Dave Kopel is an NRO contributing editor.

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