From English Penal Laws to the U.S. Second Amendment

One of my friends sent me a link to this article, assuming that I already knew about its premise: that the Second Amendment of the Bill of Rights was James Madison's response to Penal Laws that forbade Catholics in England and Ireland from owning weapons. Makes sense once I read it; like no religious tests for federal public office in Article VI, paragraph 3 was a response to English Test Acts passed during Charles II's reign.

To quote this article from The Washington Post by David Kopel:

Although Catholics were a small minority in England, there were concerns that in case of foreign invasion by a Catholic nation, they would ally with their co-religionists. Thus, in 1613 King James I had ordered the disarmament of all Catholics. Similarly, Michael Dalton’s widely read 1622 manual for Justices of the Peace, “The Countrey Justice,” explained that Justices could seize the arms of convicted “popish Recusants.” In English law, a “recusant” was a Catholic who refused to attend the services of the Church of England. Because the arms guarantee in the English Declaration of Rights did not apply to Catholics, Parliament was free in 1695 to pass “An Act for the better securing the government, by disarming papists.” The statute was aimed especially at Catholics in Ireland, who had a long history of fighting England’s efforts to rule them without their consent. Although Catholics had no right to arms, they could possess or carry a firearm if they were granted a license.

In the American colonies, however, there do not appear to have been arms restrictions aimed at Catholics, except for one episode in Maryland in the early 18th century, during Queen Anne’s War. James Madison aimed to make sure that religious restrictions on the right to arms could never be allowed in the United States. Madison’s notes for his speech in Congress introducing the Bill of Rights explained that the proposals were to deal with the “omission of guards in favr. of rights & libertys.” His amendments “relate 1st. to private rights.” A Bill of Rights was “useful–not essential.” There was a “fallacy on both sides–especy as to English Decln. of Rts.” First, the Declaration was a “mere act of parlt.” Second, the English Declaration was too narrow; it omitted certain rights and protected others too narrowly. In particular, there was “no freedom of press–Conscience.” There was no prohibition on “Gl. Warrants” and no protection for “Habs. corpus.” Nor was there a guarantee of “jury in Civil Causes” or a ban on “criml. attainders.” Lastly, the Declaration protected only “arms to Protestts.” Thus, the Second Amendment contains none of the limitations or exceptions of its English ancestor.

The author of the article is David Kopel, Research Director, Independence Institute, Denver; Associate Policy Analyst, Cato Institute, D.C; and Adjunct professor, Denver University, Sturm College of Law. It was based upon an article in the Georgetown Journal of Law & Public Policy, “The First Century of Right to Arms Litigation.”

Constitution Day and the Two Catholic Signers of the Constitution

Today is Constitution Day in the U.S.A., a day we unfortunately do not celebrate with fireworks and bands as we do our Independence Day. While it is true that Independence Day is well worth celebrating because it signifies our nation's founding as an independent country, Constitution Day is even more worthy of celebration because it demonstrates what we did when establishing our nation, limiting the power of government and protecting the rights of individuals. Of course, our country had to develop the definition of who had those rights as citizens, but the Constitution is a magnificent document of rights and restraints.

Here is a link to the official website for Constitution Day, which includes profiles of Daniel Carroll and Thomas Fitzsimmons, the two Catholic signers of the Constitution. Carroll was the cousin of Charles Carroll of Carrolltown and brother of John Carroll, Jesuit priest (until the Society of Jesus was suppressed by the pope) and first Catholic bishop in the U.S.A.

Daniel Carroll (July 22, 1730 – July 5, 1796) was a politician and one of the Founding Fathers of the United States. He was a prominent member of one of America's great colonial families that included his cousin Charles Carroll of Carrollton who signed the Declaration of Independence, and his brother John Carroll who was the first Catholic bishop in the United States. He was one of only five men to sign both the Articles of Confederation and the Constitution of the United States.

Carroll was a patrician planter who fused family honor with the cause of American independence, willingly risking his social and economic position in the community for the Patriot cause. Later, as a friend and staunch ally of George Washington, he worked for a strong central government which could secure the achievements and fulfill the hopes of the Revolution. Ironically, for one whose name was synonymous with the colonial aristocracy, Carroll fought in the Convention for a government responsible directly to the people of the country. . . .

He wanted governmental power vested in the people, and he joined James Wilson in campaigning for popular sovereignty. When it was suggested that the President should be elected by the Congress, it was Carroll, seconded by James Wilson, who moved that the words "by the legislature" be replaced with "by the people". His signature on the Constitution made him one of two Roman Catholics to sign the document, a further symbol of the advance of religious freedom in America during the Revolutionary period.

Carroll did not arrive at the Constitutional Convention until July 9, but thereafter he attended quite regularly. He spoke about 20 times during the debates and served on the Committee on Postponed Matters. Returning to Maryland after the convention, he campaigned for ratification of the Constitution but was not a delegate to the state convention.

Thomas Fitzsimmons was also born in Ireland:

Thomas Fitzsimons (1741–1811) was an American merchant and statesman of Philadelphia, Pennsylvania. He represented Pennsylvania in the Continental Congress, the Constitutional Convention, and the U.S. Congress. Fitzsimons was born in Ireland around 1741. By 1760 he had immigrated to Philadelphia, and began work as a clerk in a mercantile house. He married Catherine Meade on November 23, 1761 and formed a business partnership with her brother George. Their firm specialized in the West Indies trade, and would operate successfully for over 41 years.

As the Revolution neared, he supported the Whig position. Early in the Revolutionary War he served as captain of a company of home guards, but the only report of their actions was to support the regular troops for the Battle of Trenton in 1776. Later in the war he provided supplies, ships, and money in support of Pennsylvania’s forces.

Fitzsimons entered active politics as a delegate to the Continental Congress in 1782 and 1783. He was a member of Pennsylvania’s House of Representatives in 1786 and 1787. He was also a delegate to the U.S. Constitutional Convention in 1787. Although not a leading member of that convention, he did support a strong national government, opposed slavery, and favored giving the Congress powers to tax import and exports, as well as granting the house and the senate equal power in making treaties. He was one of only two Catholic signers of the United States Constitution.

Constitution Day, Daniel Carroll, Thomas Fitzsimmons, and "Bleeding Kansas"

Today is Constitution Day in the U.S.A., although it was really "celebrated" on September 16. Here is a link to the official website, which includes profiles of Daniel Carroll and Thomas Fitzsimmons, the two Catholic signers of the Constitution. Carroll was the cousin of Charles Carroll of Carrolltown and brother of John Carroll, Jesuit priest (until the Society of Jesus was suppressed by the pope) and first Catholic bishop in the U.S.A. More about the Carroll family here:

Charles Carroll of Carrollton (1737-1832) was the most illustrious and best-known of the Carrolls. He was the only signer whose property — Carrollton — was mentioned in the Declaration of Independence. Carrollton was the 10,000-acre estate in Frederick County, Maryland, that Charles Carroll's father had given him on his return to America from his education in Europe.

At the time he signed the Declaration, it was against the law for a Catholic to hold public office or to vote. Although Maryland was founded by and for Catholics in 1634, in 1649 and, later, in 1689 after the Glorious Revolution placed severe restrictions on Catholics in England, the laws were changed in Maryland, and Catholicism was repressed. . . .

Daniel Carroll of Rock Creek (1730-1796) was a member of the Continental Congress (1781-1783), and a signer of the Articles of Confederation. He was a delegate to the Constitutional Convention and one of only two Catholic signers of the United States Constitution. (The other Catholic signer was Thomas Fitzsimons of Pennsylvania.) At the Constitutional Convention, Daniel Carroll played an essential role in formulating the limitation of the powers of the federal government. He was the author of the presumption — enshrined in the Constitution — that powers not specifically delegated to the federal government were reserved to the states or to the people.

Daniel Carroll later became a member of the first United States Congress (1789-1791). He was also a member of the first Senate of Maryland, where he served up to the time of his death. He was appointed by Washington as one of the first three commissioners of the new federal city that is now known as the District of Columbia. In today's terminology, he would have been considered the mayor of Washington, D.C.

John Carroll (1735-1815), Daniel Carroll's younger brother, was educated in Europe, joined the Jesuit order, and was ordained a priest. He founded a private school for boys and named it after the town where it was located, Georgetown, a port on the Potomac River that later became part of Washington, D.C. He went on to be elected — by all the Catholic priests in America — to become America's first Catholic bishop. He later became archbishop of Baltimore. In any procession of American bishops, the archbishop of Baltimore always goes last in recognition of its role as America's oldest diocese. In 1789, John Carroll founded the college in Georgetown that later became known as Georgetown University.

I mentioned the Carroll family attending the Catholic college in St. Omers founded by Father Robert Parsons in Supremacy and Survival: How Catholics Endured the English Reformation.

Finally, I want to report on a fascinating lecture I attended this week at Friends University here in Wichita. Friends U. is a Quaker university--they have a chorus called "The Singing Quakers". Anyway, the Garvey Institute of Law at Friends co-sponsored a Constitution Day Program Tuesday evening on "How much did Kansas Really Bleed? Kansas, the Constitution, and the Civil War in History and Today" with support from the Kansas Humanities Council. The speaker was Dr. Brian Craig Miller, Assistant Professor of History at Emporia State University. His talk was excellent, including opportunities for the audience to answer questions and discuss issues. One of our other universities and my alma mater will present a Constitution Day NEXT week. More details here.

Happy Constitution Day!

Oh, and the answer to the question "How much did Kansas Really Bleed?"--for all the exagerration of the newspapers back east at the time: not so much. Fifty-six (56) were killed during the Bleeding Kansas period from 1854 to 1861 (yes, 2011 is Kansas's sesquescentennial year!). During the Civil War, 20,097 Kansas men signed up for the Union Army--more than 8,000 were killed. Kansas always exceeded the quota for enlistment during the Civil War by two or three times.