Joyce Lee Malcom

Sunday, February 1st, 1998

Joyce Lee Malcolm is the designated recipient of the CCRKBA Gun Rights Defender of the Month Award for February.

A Professor of History at Bentley College in Waltham, Massachusetts, she is the author of TO KEEP AND BEAR ARMS, THE ORIGINS OF AN ANGLO-AMERICAN RIGHT, published in 1994 by the Harvard University Press in both Cambridge, Massachusetts and London, England.

In nominating Ms. Malcolm for the Award, John Michael Snyder, CCRKBA Public Affairs Director, noted that “much of the controversy today in the United States over the individual right of law-abiding American citizens to keep and bear arms revolves around the meaning of the Second Amendment.

“The gun grabbers claim generally that the Second Amendment mention of the right to keep and bear arms refers only and exclusively to some kind of a collective right, such as the right of the National Guard to be armed.

“Traditionalists like us, on the other hand, maintain that the Second Amendment recognizes constitutionally an individual right to keep and bear arms.

“A lot hinges on the interpretation. If the gun grabbers were correct, it would be difficult to argue from a constitutional perspective against legislative attempts to undermine or simply eliminate the ability of citizens to acquire, own and use firearms.

“What Joyce Lee Malcolm has done with years of painstaking research, meticulous analysis and lucid writing is cut the ground out from under the collectivist argument of the gun grabbers. She has demonstrated that we traditionalists are on solid intellectual ground, that we have a strong footing on which to base our defense, and a firm bulwark from which to launch our attacks on the opposition.

“She has described the Second Amendment right to keep and bear arms as ‘the safety valve of the Constitution.’

“She truly is most deserving of this Award.”

An historian specializing in seventeenth century English constitutional history, Ms. Malcolm holds a bachelor’s degree from Barnard College and a doctoral degree from Brandeis University. She is a fellow of the Royal Historical Society.

Professor Malcolm’s first book, CAESAR’S DUE: LOYALTY AND KING CHARLES, was published by the Royal Historical Society and Humanities Press.

Her work has been supported by the National Endowment for the Humanities, the American Bar Foundation, Harvard Law School, Robinson College of Cambridge University and the Huntington Library.

“The Second Amendment was meant to accomplish two distinct goals,” writes Malcolm, “each perceived as crucial to the maintenance of liberty. First, it was meant to guarantee the individual’s right to have arms for self-defence and self-preservation. Such an individual right was a legacy of the English Bill of Rights. This is also plain from American colonial practice, the debates over the Constitution, and state proposals for what was to become the Second Amendment.

“In keeping with colonial precedent, the American article broadened the English protection. English restrictions had limited the right to have arms to Protestants and made the type and quantity of such weapons dependent upon what was deemed ‘suitable’ to a person’s ‘condition.’ The English also included the proviso that the right to have arms was to be ‘as allowed by law,’ Americans swept aside these limitations and forbade any ‘infringement’ upon the right of the people to keep and bear arms.

“These privately owned arms were meant to serve a larger purpose as well, albeit the American framers of the Second Amendment, like their English predecessors, rejected language linking their right to ‘the common defence.’ When, as Blackstone phrased it, ‘the sanctions of society and laws are found insufficient to restrain the violence of oppression,’ these private weapons would afford the people the means to vindicate their liberties.

“The second and related objective concerned the militia, and it is the coupling of these two objectives that has caused the most confusion. The customary American militia necessitated an armed public, and Madison’s original version of the amendment, as well as those suggested by the states, described the militia as either ‘composed of’ or ‘including’ the body of the people. A select militia was regarded as little better than a standing army. The argument that today’s National Guardsmen, members of a select militia, would constitute the only people entitled to keep and bear arms has no historical foundation. Indeed, it would seem redundant to specify that members of a militia had the right to be armed. A militia could scarcely function otherwise. But the argument that this constitutional right to have weapons was exclusively for members of a militia falters on another ground. The House committee eliminated the stipulation that the militia be ‘well-armed,’ and the Senate, in what became the final version of the amendment, eliminated the description of the militia as composed of the ‘body of the people.’ These changes left open the possibility of a poorly armed and narrowly based militia that many Americans feared might be the result of federal control. Yet the amendment guaranteed that the right of ‘the people’ to have arms not be infringed. Whatever the future composition of the militia, therefore, however well or ill armed, was not crucial because the people’s right to have weapons was to be sacrosanct. As was the case in the English tradition, the arms in the hands of the people, not the militia, are relied upon ‘to restrain the violence of oppression…’

“The clause concerning the militia was not intended to limit ownership of arms to militia members, or return control of the militia to the states, but rather to express the preference for a militia over a standing army. The army had been written into the Constitution. Despite checks within the Constitution to make it responsive to civil authority, the army was considered a threat to liberty. State constitutions that had a bill of rights had copied the English model and prohibited a standing army in time of peace without the consent of their state legislatures…A strong statement of preference for a militia must have seemed more tactful than an expression of distrust of the army. The Second Amendment, therefore, stated that it was the militia, not the army, that was necessary to the security of a free state. The reference to a ‘well regulated’ militia was meant to encourage the federal government to keep the militia in good order.”