Date: Sun, 15 May 1994 15:35:38 EDT
From: <[34 AEJ 7 D] at [CMUVM.BITNET]>
Newsgroups: talk.politics.guns
Subject: The 2nd Amendment - A Historical Perspective
The Second Amendment and the Ideology of Self-Protection
Don B. Kates Jr.
Introduction
From the enactment of the Bill of Rights through most of
the 20th Century, the Second Amendment seems to have been
understood to guarantee to every law-abiding responsible adult the
right to possess arms. Until the mid-20th Century courts and
commentaries (the two earliest having been before Congress when it
voted on the Second Amendment) deemed that the Amendment "confirmed
[the people] in their right to keep and bear their private arms",
"their own arms", albeit 19th Century Supreme Court decisions held
it subject to the non-incorporation doctrine under which none of
the Bill of Rights were deemed inapplicable against the states.1
In a 1939 case which is its only full treatment, the Supreme Court
accepted that private persons may invoke the Second Amendment, but
held that it guarantees them only freedom of choice of militia-type
weapons, i.e. high quality handguns and rifles, but not "gangster
weapons" like sawed-off shotguns, switchblade knives and (arguably)
"Saturday Night Specials.2
In the 1960s this individual right view was challenged by
scholars arguing that the Second Amendment guarantee extends only
to the states' right to arm formal military units.3 The states'
right view attained predominance, being endorsed by the ABA, the
ACLU and such texts as Tribe's AMERICAN CONSTITUTIONAL LAW. During
the 1980s, however, a large literature on the Amendment appeared
most of it rejecting the states' right view as inconsistent with
the text ("right of the people", not "right of the states") and
with new research findings on the immediate legislative history,
the attitudes of the authors, the meaning of the right to arms in
antecedent American and English legal thought and the role that an
armed citizenry played in classical liberal political philosophy
from Aristotle through Machiavelli and Harrington to Sidney, Locke,
Rousseau and their various disciples.4 Indicative of the current
Supreme Court's probable view is a 1990 decision which, though
focussing on the Fourth Amendment, cites the First and Second as
well in concluding that the phrase "right of the people" is a term
of art used throughout the Bill of Rights to designate rights
pertaining to individual citizens (in contrast to the states).5
Sanford Levinson speculates that the indifference of
academia, and the legal profession generally, to the Amendment
reflects
a mixture of sheer opposition to the idea of
private ownership of guns and the perhaps
subconscious fear that altogether plausible,
perhaps even "winning" interpretations of the
Second Amendment would present real hurdles to
those of us supporting prohibitory
regulation.6
Surprisingly, perhaps, the converse is not the case; Levinson and
others who reluctantly embrace the individual right view are by no
means necessarily sympathetic to gun ownership, much less to the
gun lobby's obnoxious pretension that the Amendment bars any gun
control it happens to oppose, however moderate or rational.7 This
may help account for the fact that, though the availability of guns
for self-defense is of great import to the gun lobby, that issue
plays little part in modern academic exposition of the individual
rights position. In contrast, proponents of the state's right view
do focus on the issue of self protection, straight-forwardly
denying the existence of historical evidence that it was one of the
concerns underlying the Second Amendment.8
The purpose of this article is to explore the numerous
and protean ways in which the concept of self-protection related to
the Amendment in the minds of its authors. For self-defense is
indeed at the core of the Second Amendment and an element in the
Founders' political thought generally. At the same time it is
important to realize that the Founding Fathers' view of self-
protection was not only more favorable but also more inclusive than
the concept as disfavored by many modern thinkers. To the Founders
and their intellectual progenitors, being prepared for self-defense
was a moral imperative as well as a pragmatic necessity; moreover,
its pragmatic value lay less in repelling usurpation than in
deterring it before it occurred.
Self-protection as a Core Concept of Classical Liberal Political
Philosophy
The underpinnings of the classical liberal belief in an
armed people are obscure to us because we are not accustomed to
thinking about political issues in criminological terms. But the
classical liberal worldview was criminological, for lack of a
better word. It held that good citizens must always be prepared to
defend themselves and their society against criminal usurpation --
a characterization no less applicable to tyrannical ministers or
pillaging foreign or domestic soldiery (who were, in point of fact,
largely composed of criminals inducted from gaols9) than to
apolitical outlaws.
To natural law philosophers, self-defense was "the
primary law of nature", the primary reason for man entering
society.10 Indeed, it was viewed as not just a right but a
positive duty: God gives Man both life and the means to defend it;
the refusal to do so reviles God's gift; in effect it is a Judeo-
Christian form of hubris. Indicative of the intellectual gulf
between that era and our own is that Montesquieu could rhetorically
ask a question that today might be seriously posed, "Who does not
see that self-protection is a duty superior to every precept?"11
Radiating out directly from this core belief in self-
defense as the most self-evident of rights came the multiple chains
of reasoning by which contemporary thinkers sought to resolve a
multitude of diverse questions. For instance, 17th and 18th
Century treatises on international law were addicted to long
disquisitions on individual self-protection from which they
attempted to deduce a law of nations.12 More important for
present purposes, John Locke adduced from the right of individual
self-protection his justification of the right(s) of individuals to
resist tyrannical officials and, if necessary, to band together
with other good citizens in overthrowing tyranny: God gives Man
life, liberty, and property. Slavers, robbers and other outlaws who
would deprive him of these rights may be resisted even to the death
because their attempted usurpation places them in a "state of war"
against the honest man; likewise, when a King and/or his officials
attempts to divest the subject of life, liberty or property they
dissolve the compact by which he has agreed to their governance and
enter into a state of war with him -- wherefore they may be
resisted the same as any other usurper. Likewise Algernon Sidney
declared: "Swords were given to men, that none might be Slaves, but
such as know not how to use them"; a tyrant is "a public Enemy";
every man may rightfully use his arms rather than submit to "the
violence of a wicked Magistrate, who having armed a Crew of Lewd
Villains" subjects him to murder and pillage. "Nay, all Laws must
fall, human Societies that subsist by them be dissolved, and all
innocent persons be exposed to the violence of the most wicked, if
men might not justly defend themselves against injustice...."13
From these premises it followed, as Thomas Paine wrote,
that "the good man," had both right and need for arms; moreover, no
law would dissuade "the invader and the plunderer," from having
them. So, "since some will not, others dare not lay them aside....
Horrid mischief would ensue were" the law-abiding "deprived of the
use of them;... the weak will become a prey to the strong."14
Similarly did Cesare Beccaria assail arms bans as a paradigm of
simplistic legislation reflecting "False Ideas of Utility." His
discussion deserves quotation in full, inter alia because Thomas
Jefferson laboriously copied it in long-hand into his personal
compilation of great quotations:15
False is the idea of utility that sacrifices a
thousand real advantages for one imaginary or
trifling inconvenience; that would take fire
from men because it burns, and water because
one may drown in it; that has no remedy for
evils, except destruction. The laws that
forbid the carrying of arms are laws of such a
nature. They disarm those only who are
neither inclined nor determined to commit
crimes. Can it be supposed that those who
have the courage to violate the most sacred
laws of humanity, the most important of the
code, will respect the less important and
arbitrary ones, which can be violated with
ease and impunity, and which, if strictly
obeyed, would put an end to personal liberty--
so dear to men, so dear to the enlightened
legislator--and subject innocent persons to
all the vexations that the quality alone ought
to suffer? Such laws make things worse for
the assaulted and better for the assailants;
they serve rather to encourage than to prevent
homicides, for an unarmed man may be attacked
with greater confidence than an armed man.
They ought to be designated as laws not
preventive but fearful of crimes, produced by
the tumultuous impression of a few isolated
facts, and not by thoughtful consideration of
the inconveniences and advantages of a
universal decree.
Self-protection as benefit to the whole community
The ideas underlying the Second Amendment are also
obscured to us by the distinction we tend to draw between self-
protection as a purely private and personal value and defense of
the community which we tend to conceptualize as a function and
value of the police. Modern Americans tend to see incidents in
which a violent criminal is thwarted by a police officer as very
different from similar incidents in which the defender is a
civilian. When the police defend citizens it is conceptualized (and
lauded) as defense of the community. In contrast, when civilians
defend themselves and their families the tendency is to regard them
as exercising what is, at best, a purely personal privilege serving
only the particular interests of those defended, not those of the
community at large. Such influential and progressive voices in
American life as Garry Wills, Ramsey Clark and the WASHINGTON POST
go further yet, declaring those who own firearms for family defense
"anti-citizens", "traitors, enemies of their own patriae", arming
"against their own neighbors" and denouncing "the need that some
homeowners and shopkeepers believe they have for weapons to defend
themselves" as representing "the worst instincts in the human
character", a return to barbarism, "anarchy, not order under law --
a jungle where each relies on himself for survival."16
The notion that the truly civilized person eschews self-
defense, relying on the police instead, or that private self-
protection disserves the public interest, would never have occurred
to the Founding Fathers since there were no police in 18th Century
America and England. As addressed infra, in the tradition from
which the Second Amendment derives it was not only the unquestioned
right, but a crucial element in the moral character, of every free
man that he be armed and willing to defend his family and the
community against crime both individually and by joining with his
fellows in hunting criminals down when the hue and cry went up, and
in more formal posse, and militia patrol duties, under the control
of justices of the peace or sheriffs.17 In this milieu,
individuals who thwarted a crime against themselves or their
families were seen as serving the community as well. If the right
to possess and use arms "against robbers and plunderers was taken
away, then would follow a vast license of crime and a deluge of
evils" averred Hugo Grotius.18
This failure to distinguish the value of self-protection
to individuals as opposed to the community, helps account for what
modern readers may deem a remarkable myopia in 17th-19th Century
liberal discourse on crime, self-protection and community interest.
Without apparent consciousness of any difference, liberal discourse
addressed issues of community defense as if it were only individual
self-protection writ large. Thus, Montesquieu confidently asserted
that "The life of governments is like that of man. As the former
has a right to kill in case of natural defense, the latter have a
right to wage war for their own preservation." Likewise, Thomas
Paine cited the (to his compeers) indubitable right and need for
"the good man" to be armed against "the vile and abandoned" as
irrefutable evidence of the right and need of nations to arm for
defense against "the invader and plunderer"; for, if deprived of
arms, "the weak will become a prey to the strong."19 As we have
seen, Algernon Sydney and John Locke adduced from the right of
individual self-defense their justification of the right(s) of
individuals to resist tyrannical officials and, if necessary, to
band together with other good citizens to overthrow tyranny.
Thus a crucial point for understanding the Second
Amendment is that it emerged from a tradition which viewed general
possession of arms as a positive social good, as well as an
indispensable adjunct to the premier individual right of self-
defense. Moreover, arms were deemed to protect against every
species of criminal usurpation, including "political crime", a
phrase which the Founding Fathers would have understood in its most
literal sense. Whether murder, rape and theft be committed by gangs
of assassins, tyrannous officials and judges or pillaging soldiery,
rather than outlaw bands, was a mere detail; the criminality of the
"invader and plunderer" lay in his violation of natural law and
rights, regardless of the guise in which he violated them. The
right to resist and to possess arms therefor -- and the community
benefit from such individual and/or concerted self-protection --
remained the same.
Political Functions of the Right to Arms
The views of Locke and Sidney--so controversial in their
own time that they were the basis of the prosecution's case in the
trial that resulted in Sidney's execution --had became settled
orthodoxy by the mid-18th Century. Thus we find Edward Gibbon, a
Tory M.P. in the circle of George III casually remarking, in the
course of defining "monarchy":
[U]nless public liberty is protected by intrepid and
vigilant guardians, the authority of so formidable a
magistrate will soon degenerate into despotism.
[A]lthough the clergy might effectively oppose the
monarch they have] very seldom been seen on the side of
the people. A martial nobility and stubborn commons,
possessed of arms, tenacious of property, and collected
into constitutional assemblies, form the only balance
capable of preserving a free constitution against
enterprises of an aspiring prince.20
Similar sentiments were expressed by Gibbon's somewhat
more liberal contemporary, Sir William Blackstone, in analyzing the
right to arms. Significantly, the way in which he described that
right emphasizes both the individual self-protection rationale, and
the criminological premises, which are so foreign to the terms of
the modern debate over the Second Amendment.
For Blackstone placed the right to arms among the
"absolute rights of individuals at common law," --those rights he
saw as preserving to England its free government and to Englishmen
their liberties. Yet, unquestionably, what Blackstone was referring
to was individuals' rights to have and use personal arms for self-
protection. The right to arms' he describes as being "for self-
preservation and defense", and self-defense as being "the primary
law of nature which [cannot be] taken away by the law of society"
-
- the "natural right of resistance and self-preservation, when the
sanctions of society and laws are found insufficient to restrain
the violence of oppression." But, just as clearly, Blackstone saw
this right to personal arms for personal self-defense as a
political right of fundamental importance. For his discussion of
the "absolute rights of individuals" ends with the following:
In these several rights consist the rights, or, as they
are frequently termed, the liberties of Englishmen....
So long as these remain inviolate, the subject is
perfectly free; for every species of compulsive tyranny
and oppression must act in opposition to one or [an]other
of these rights, having no other object upon which it can
possible be employed.... And, lastly, to vindicate these
rights, when actually violated or attacked, the subjects
of England are entitled, in the first place, to the
regular and free course of justice in the courts of law;
next, to the right of petitioning the King and parliament
for redress of grievances; and, lastly, to the right of
having and using arms for self-preservation and
defense.21
To readers with modern sensibilities this inevitably
raises two questions to which the remainder of this article is
devoted: Why did Blackstone regard the right to possess arms for
self-protection as a political matter? How could he have grouped
(what we at least conceive as no more than) a privilege to have the
means of repelling a robber, rapist or cutthroat with such
political rights as access to the courts and to petition for
redress of grievances?
The Armed Freeholder Ideal of Virtuous Citizenship
The final section of this article describes several
historical situations in which the possession (or prohibition) of
arms for personal self-protection had concrete political effects.
But no less important in the classical liberal worldview was the
moral and symbolic significance of the right to arms.
Arms possession for protection of self, family and polity
was both the hallmark of the individual's freedom and one of the
two primary factors in his developing the independent, self-
reliant, responsible character which classical liberal political
philosophers deemed necessary to the citizenry of a free state. The
symbolic significance of arms as epitomizing the status of the free
citizen represented ancient law. From Anglo-Saxon times "the
ceremony of freeing a slave included the placing in his hands of"
arms "as a symbol of his new rank." Likewise in Norman times, "the
Laws of Henry I stipulate[d] that a serf should be liberated by" a
public ceremony involving "placing in his hands the arms suitable
to a freeman." Anglo-Saxon law forbade anyone to disarm a free man
and Henry I's laws applied this even to the man's own lord.22
Such precedents were particularly important to theorists like
Blackstone and Jefferson to whom the concept of "natural rights"
had a strongly juridical tinge relating to the English legal
heritage.
The Anglo-American legal distinction between free
man/armed and unfree/disarmed flowed naturally into the classical
liberal view that the survival of free and popular government
required citizens of a special character--and that the possession
of arms was one of two keys in the development of that character.
From Machiavelli and Harrington classical liberal philosophy
derived the idea that arms possession and property ownership were
the keys to civic virtu. In the Greek and Roman republics from
whose example they took so many lessons, every free man had been
armed so as to be prepared both to defend his family against
outlaws and to man the city walls in immediate response to the
tocsin warning of approaching enemies. Thus did each citizen commit
himself to the fulfillment of both his private and his public
responsibilities.23
The very survival of republican institutions depended
upon this moral (as well as physical) commitment--upon the moral
and physical strength of the armed freeholder: sturdy,
independent, scrupulous, and upright, the self-reliant defender of
his life, liberty, family, and polity from outlaws, oppressive
officials, despotic government, and foreign invasion alike. That
the freeholder might never have to use his arms in such protection
mattered naught. (Indeed, one basic tenet classical political
theory took from its criminological premises was that of
deterrence: if armed and ready the free man would be least likely
ever to actually have to defend. Simply to be armed, and therefore
able to protect one's own, was enough; this moral commitment both
developed and exemplified the character of the virtuous republican
citizen.)
Commitment, duty, responsibility is also viewed as a
positive right (at least when challenged) because, naturally
enough, to the virtuous citizen the carrying out of
responsibilities to family and duties to country are a right. And
this right/obligation to be armed inevitably will be challenged for
it is the nature of absolutism to want to disarm the people. Nor
is this simply for the physical security despotism gains in
monopolizing armed power in the hands of the state, thereby
rendering the people helpless. Disarmament also operates on the
moral plane. The tyrant disarms his citizens in order to degrade
them; he knows that being unarmed
palsies the hand and brutalizes the mind: an habitual
disuse of physical force totally destroys the moral; and
men lose at once the power of protecting themselves, and
of discerning the cause of their oppression.24
Thus, when Machiavelli said that "to be disarmed is to be
contemptible," he meant not simply to be held in contempt, but to
deserve it; by disarming men tyrants render them at once brutish
and pusillanimous.
It was in this tradition of civic virtue through armament
that Thomas Jefferson (who believed that every boy of ten should be
given a gun as he had been) advised his 15 year old nephew:
A strong body makes the mind strong. As to the species
of exercises, I advise the gun. While this gives a
moderate exercise to the body, it gives boldness,
enterprise and independence to the mind. Games played
with the ball, and others of that nature, are too violent
for the body and stamp no character on the mind. Let
your gun therefore be the companion of your walks.25
The efficacy of arms and self-defense
Of course the reasons for the Founding Fathers' belief in
arms possession were not limited to purely moral premises. Indeed,
the Founders and their intellectual progenitors had an almost
boundless faith in the pragmatic, as well as the moral, efficacy of
widespread arms possession. They would be not at all surprised that
no 20th Century military has managed to suppress an armed popular
national insurgency, a fact which accounts for the modern histories
of Afghanistan, Algeria, Angola, Cuba, Ireland, Israel, Madagascar,
Nicaragua, Vietnam and Zimbabwe, to name only the most prominent
examples. Classical liberal thought espoused an almost boundless
faith in the efficacy of civilian arms possession as deterrent and
defense against outlaws, tyrants and foreign invaders alike.
Madison confidently assured his fellow-countrymen that a free
people need not fear government "because of the advantage of being
armed, which the Americans possess over the people of almost every
other nation."26 Arming the people is, according to Locke's
followers Trenchard and Moyle,
the surest way to preserve [their liberties]
both at home and abroad, the People being
secured thereby as well against the Domestick
Affronts of any of their own [fellow]
Citizens, as against the Foreign Invasions of
ambitious and unruly Neighbors.27
This faith in the efficacy of arms buoyed up Locke and
his English and American followers against their opponents' charge
that their advocacy of a right to resistance and even revolution
would lead to sanguinary and internecine disorders. To the
contrary, they replied, that is what will come from disarming the
people. Unchecked by the salubrious fear of its armed populace,
government will follow its natural tendency to despotism. Tyrannous
ministers will push their usurpations to the point that even an
unarmed people will arise en masse to take their rights back into
their bloody hands regardless of casualties.28 But where the
people are armed it would rarely, if ever, come to this for, as
Thomas Paine asserted, "arms like laws discourage and keep the
invader and plunderer in awe and preserve order in the world as
well as property."29 To avoid domestic tyranny, wrote Trenchard
and Moyle, the people must be armed to
stand upon [their] own Defense; which if [they] are able
to do, [they] shall never be put upon it, but [their]
Swords will grow rusty in [their] hands; for that Nation
is surest to live in Peace, that is most capable of
making War; and a Man that hath a Sword by his side,
shall have least occasion to make use of it.30
Whatever the merits of this deterrence theory, in other respects
the Founders also carried their belief in the right to arms to
absurdly utopian extremes. Writers like Timothy Dwight and Joel
Barlow airily dismissed the dangers inherent in widespread
possession of arms:
[T]heir conscious dignity, as citizens enjoying equal
rights, [precludes armed citizens having any desire] to
invade the rights of others. The danger (where there is
any) from armed citizens, is only to the government, not
to the society; as long as they have nothing to revenge
in the government (which they cannot have while it is in
their own hands) there are many advantages in their being
accustomed to the use of arms and no possible
disadvantage.31
Even more outlandish to modern eyes is the explanation which the
early English liberal Francis Place gave of how hatred and violence
against the Jews were erased in 18th Century England:
Dogs could not be used in the streets in the
manner many Jews were treated. One
circumstance among others put an end to the
ill-usage of the Jews. About the year 1787
Daniel Mendoza, a Jew, became a celebrated
boxer and set up a school to teach the art of
boxing as a science. The art soon spread among
young Jews and they became generally expert at
it. The consequence was in a very few years
seen and felt too. It was no longer safe to
insult a Jew unless he was an old man and
alone. But even if the Jews were unable to
defend themselves, the few who would now be
disposed to insult them merely because they
are Jews, would be in danger of chastisement
from the passers-by and of punishment from the
police.32
The First, Second, Third and Fourth Amendments as Connected
Guarantees
The Founding Fathers' reasons for guaranteeing a right to
arms for individual self-protection were not limited to abstruse
moral or philosophical precepts. The Amendment reflects concrete
historical circumstances known to them which help explain why the
right to arms in our Bill of Rights follows immediately upon the
First Amendment and precedes the Third and Fourth.
Probably the most obvious political ramification of the
right to defensive arms is the deterrent effect of the power to
disarm dissenters in a violence-ridden society. Until the early
19th Century England was an enormously violent country overrun with
cutthroats, cutpurses, burglars and highwaymen and in which rioting
over social and political matters was endemic. Moreover, until 1829
it had no police. So when the 17th Century Stuart Kings began
selectively disarming their enemies the effect was not simply to
safeguard the throne, but to severely penalize dissent. Those who
had opposed the King were left helpless against either felons or
rioters--who, by the very fact, were encouraged to attack them. The
in terrorrem effect upon dissent of knowing that to speak out might
render one's family defenseless while targeting them for every
felon, and every enemy who might want to whip up riotous public
sentiment against them, is obvious.
Caucasian readers in well-policed modern America may find
it difficult to see riot either as a socio-political phenomenon or
as something to which personal self-protection is relevant. Yet
over many years riot and nightrider attacks--perpetrated while
police stand by--have served to undercut or destroy civil rights
gains, strike back at racial and ethnic minorities, and exclude
blacks from white neighborhoods. It has been suggested that the
availability of firearms for protection against private,
retaliatory violence was a key to the Civil Rights Movement's
survival in the southern United States of the 1950's and 1960's.
Comparison might be made to South Africa where blacks, though an
overwhelming majority, are subject to one of the world's most
effective gun control campaigns.33
The disarmament of minorities or dissenters in a climate
in which they may be subject to private violence (often encouraged
by government) has been a well-established policy in many countries
including Nazi Germany and the Soviet Union. The leading example
is the Krystallnacht (Nov. 9, 1938) in which thousands of Jews were
beaten, raped and/or murdered and a billion reichsmarks of Jewish
property was looted or destroyed in nationwide riots orchestrated
by the Nazi Party after the Jews had been excluded from gun
ownership under German law.34 It is dubious that many German Jews
wanted to own arms--or that it would have made any difference to
their eventual fate. But it is an item of faith in Israel that
Jews persevered and triumphed in Middle East--where they were
during the 1930's a far smaller minority, and subject to far more
violence, than in Europe--because they took steps to obtain and use
arms.
Rioters and vigilantes are not the only kinds of villains
against whom the necessity of protection may be less clearly
perceived today than it was in the age of Blackstone. No less a
menace than rioters or outlaws was the pillaging soldier, loosed
not only on foreign populations but in his own country for
political, religious or social reasons or because of the King's
inability to pay, and thus control, him. Generally speaking, there
was no difference of character between rioters, felons and
soldiers--who were often one and the same. Often the soldier was
a common criminal inducted directly out of jail and unleashed on
the King's enemies, whether foreign or domestic. The perpetration
of such outrages upon his critics by Charles I engendered the
Petition of Right of 1628 and helped eventually to bring him to the
headsman. But of innumerable such examples that might be cited from
European history in this period, probably the one most remembered
by 18th Century Englishmen and Americans would have been the
persecution that drove the Huguenots to their chores by the
thousands. As a modern historian has noted, among the numerous
tribulations visited in the 1690's upon the Huguenots in order to
compel them to convert, the
most atrocious--and effective--were the
dragonnades, or billeting of dragoons on
Huguenot families with encouragement to behave
as viciously as they wished. Notoriously
rough and undisciplined, the enlisted troops
of the dragoons spread carnage, beating and
robbing the householders, raping the women,
smashing and wrecking and leaving filth...35
As Englishmen and Americans were well aware from their reading of
Bodin, Beccaria and Montesquieu, the Huguenots had been rendered
incapable of resisting either individually or as a group by the
Continental policy of disarming all but the Catholic nobility.
The need to be armed for individual protection had been
brought home to late 18th Century Americans by their own experience
with the "licentious and outrageous behavior of the military"
Britain sent among them during the decade of protest and turmoil
that preceded the Revolution.36 As in England itself, the
people's unwillingness to enforce smuggling laws upon themselves
required the state to use soldiers to perform the duties of the
non-existent police. Committed to the folly of "asserting a right
[to tax the colonists] you know you cannot enforce,"37 during the
1760's and early 1770's England dispatched ever-increasing numbers
of troops as the Stamp Tax was added to the Navigation Acts and
then succeeded by the Townshend Acts, the Tea Tax, etc. These
soldiers (eventually operating under a specially appointed British
Customs Board) executed both ordinary warrants and the notorious
Writs of Assistance under which they made wholesale searches of
vessels, homes, vehicles, and warehouses, perusing goods, documents
and records--in a tumultuous process in which even those not seized
were often destroyed along with the surrounding furnishings.38
By 1768 the people of Massachusetts, the most radical and
impatient of the colonies, had had enough: rendered over confident
by military reinforcements, the Customs Board had seized John
Hancock's ship Liberty--and then fled to a British warship for
safety in the resulting tumult; seven years of protest had resulted
in the colonies feeling the yoke of ever-increased military
occupation; Massachusetts' latest protest (a circular letter to the
other colonial legislatures urging non-payment of the taxes) had
been met by an official demand that the letter be repudiated on
pain of dissolution of the Massachusetts Assembly; the Customs
Board's intention to continue the searches was evident and General
Gage was calling in troops for that purpose from all over the
colonies and Canada.
So leading figures in Boston, and the town officially,
advised the citizens that their only resource was to arm themselves
for the protection of their liberty and property. An article
reprinted in newspapers throughout the colonies alleged abuses by
the soldiers carrying out searches "of such nature" and "carried to
such lengths" that for "the inhabitants to provide themselves with
arms for their defence, was a measure as prudent as it was
legal...." As to the legality of personal armament, the article
went on to invoke Blackstone himself in terms that emphasize the
political nature of the right and yet its relationship to the right
of self-defense:
It is a natural right which the people have reserved to
themselves, confirmed by the [English] Bill of Rights, to
keep arms for their own defence; and as Mr. Blackstone
observes, it is to be made use of when the sanctions of
society and law are found insufficient to restrain the
violence of oppression.39
The denouement, of course, was an ever-escalating series
of incidents between the colonists and troops attempting to enforce
the taxes and customs duties and suppress protest of them. The
Boston Massacre, General Gage's confiscation of the arms stored at
Lexington and Concord, and his subsequent attempt to disarm the
entire populace of Boston are among the most important of the
things that propelled the colonies into revolution.
The desirability of citizens arming themselves against
illegal search--or of revolution, for that matter--may seem dubious
to modern Americans enjoying the benefits of a vigilant judiciary
and police of a character far better than the soldiery known to our
forefathers. But to 18th Century Americans, the course of pre-
Revolution British policy only confirmed the necessity of every
free citizen having access to arms: "to disarm the people"; that,"
said George Mason, "was the best and effectual way to enslave
them."40 This imagery of "enslavement" and the possession of arms
as the guarantee against it appears throughout the writings of
Sidney, Locke and their disciples up to and including the Founding
Fathers forming a consistent theme consisting of the following
propositions: every free man has an inalienable right to defend
himself against robbery and murder--or enslavement, which partakes
of both; the difference between a slave and a free man is the
latter's possession of arms which allows him to exercise his right
of self-defense; for government to disarm the citizen is not just
to rob him of his property and liberty; it is the first step toward
"enslaving" him, i.e., robbing him of all his property and all his
liberties--which will inevitably follow once he has been disarmed.
In America from the immediate pre-Revolutionary period through the
debates over the Constitution, this equation of personal self-
protection with resistance to tyranny--of self-protection against
the slave trader to self-protection against "enslavement" by
government--recurs again and again.41
In evaluating how such statements relate to the concept
of self-protection it is also essential to remember that the
imagery of a man defending himself against abduction by a slaver
was not the mere figure of speech it might seem to us. Locke,
Sidney and their contemporaries lived in a world in which human
slavery was a grotesque reality; the Founding Fathers lived among,
and upon the labor of, a people many of whom were being held under
duress. The Founding Fathers were acutely conscious of the
inconsistency between their noble declamations about their own
freedom and their actual conduct regarding the enslavement of
others. In invoking the right to resist "enslavement" they were
analogizing to a situation conceived quite literally in terms of a
right and need for direct personal self-defense.
It may be time now to rhetorically restate (and thereby
answer) the questions posed earlier: Does this background suggest
why Blackstone saw political overtones in the right to arms,
coupling his discussion of it to rights that are plainly political
in nature? Does it help explain why in the Bill of Rights arms
follows religion, expression, press and petition -- and is followed
by the Third Amendment guarantee against quartering of soldiers and
the Fourth against unreasonable searches and seizures? In view of
this background, two other connections between the Fourth, Third,
and Second Amendments merit mention: First, in both French and
English experience, searches and seizures would generally have been
carried out by soldiery rather than by civil authorities; second,
the castle doctrine which the Fourth Amendment enunciates ("a man's
home is his castle and his defense") originated in caselaw
exonerating freeholders who had killed intruders.42 In short, not
only are these rights phrased in substantially identical terms (the
First, Second, and Fourth Amendments all speak in terms of rights
"of the people"), but their roots, and the situations in which they
were visualized as operating, are closely identified.
Conclusion
The self-defense origins of the Second Amendment are many
and complex. Natural law philosophers saw self-defense as the
premier natural right. From it they adduced a variety of other
rights (for both individuals and collectivities), the most obvious
and closely related being the right to arms. These connections were
particularly important to Lockeans and their progeny down to and
including the Founding Fathers. They saw killings, maimings,
assaults, despoliation and rapine as equally criminal whether the
perpetrators were apolitical outlaws or "lewd Villains" serving a
"wicked Magistrate." Viewing despotic impositions and terrorization
of the people as a species of criminal usurpation, the Founders saw
the rights of individual arms possession and resistance, and of
collective revolution where necessary, as aspects of the right to
self-defense. At the same time the Lockeans believed widespread
popular possession of arms to be a powerful deterrent to political
and apolitical crime alike.
No less important in shaping the Amendment was the Anglo-
American legal tradition (as the Founders understood it) which was
influential both in its own right and as support for the view of
the right to arms which the Founders took from classical liberal
political philosophy. In that tradition there were no police and
the very idea of empowering government to place an armed force in
constant watch over the populace was vehemently rejected as a
paradigm of abhorrent French despotism. Notwithstanding the
evident need for municipal police, it would be another 40-50 years
before police were commissioned in either English or American
cities. Even then they were specifically forbidden arms, under the
view that if these were needed they could call armed citizens to
their aid. (Ironically, the only gun control in 19th Century
England was the policy forbidding police to have arms while on
duty.44)
In the absence of a police, the American legal tradition
was for responsible, law abiding citizens to be armed and see to
their own defense and for most military age males to chase down
criminals in response to the hue and cry and to perform the more
formal police duties associated with their membership in the posse
comitatus and the militia. It was the possession of arms in these
contexts which the Second Amendment constitutionalized. "The right"
to arms refers to that which pre-existed in American common and
statutory law, i.e., the legal right to possess arms which was
enjoyed by all responsible, law-abiding individuals, including both
militiamen and those exempt from militia service (the clergy,
women, conscientious objectors and men over the age of militia
service).
Nor should it be thought that the Founding Fathers would
have repudiated their belief in the right of self-defense -- and of
individuals to be armed for self-defense -- if they had anticipated
the replacement of the militia and posse comitatus by modern police
agencies. They knew of the Stuarts' attempts to penalize dissent by
disarming their opponents in an era of rampant crime and violence.
Nor would it have seemed prudent to rely on the state as protector
(rather than exploiter) of its unarmed citizens, given the examples
of the Customs Board, and of General Gage's troops and the soldiery
generally, in 18th Century America or Stuart England and Bourbon
France. Rather those examples confirmed both the criminologically
based worldview of classical liberal philosophy and its foundation
in the even more ancient dictum that just and popular governments
rest upon widespread popular possession of arms, whereas basic to
tyrants is "mistrust of the people; hence they deprive them of
arms."45
References
1 In addition to the cases and earlier commentaries quoted and
discussed in Kates, "Handgun Prohibition and the Original Meaning
of the Second Amendment," 82 MICH. L.REV. 204, 224 and 241-51
(1983) (hereinafter "Original Meaning") see POMEROY'S
CONSTITUTIONAL LAW 152-3 (1870), 5 H. von Holst, THE CONSTITUTIONAL
AND POLITICAL HISTORY OF THE UNITED STATES 307 (1885), BLACK'S
CONSTITUTIONAL LAW 403 (1895), J. Schouler, CONSTITUTIONAL STUDIES:
STATE AND FEDERAL (1897), 2 J. Tucker, THE CONSTITUTION OF THE
UNITED STATES 327 (H. Tucker, ed. 1899), A. Putney, UNITED
STATES
CONSTITUTIONAL HISTORY AND LAW 363 (1908) and 1 J. OF CRIM. L.,
CRIMIN. & POL. SCI. 794 (1911).
2 United States v. Miller, 307 U.S. 174 (1939).
3 See, e.g., Levin, "The Right to Bear Arms: The Development of
the American Experience," 48 CHI-KENT L. REV. 148 (1971);
Weatherup, "Standing Armies and Armed Citizens: An Historical
Analysis of the Second Amendment," 2 HAST. CONST. L.Q. 961 (1972).
4 See, e.g. Shalhope, The Ideological Origins of the Second
Amendment, 69 J. Am. Hist. 599 (1982), Original Meaning, 82 Mich.
L. Rev. supra; Malcolm, The Right of the People to Keep and Bear
Arms: The Common Law Perspective, 10 Hast. Const. L.Q. 285 (1983);
S. Halbrook, "That Every Man Be Armed": The Evolution of a
Constitutional Right (1984), Levinson, The Embarrassing Second
Amendment, 99 Yale L. J. 637 (1989), Kates, Minimalist
Interpretation of the Second Amendment in E. Hickok, ed., The Bill
of Rights: Original Understanding and Current Meaning (U. Va.,
1990), Amar, The Bill of Rights As a Constitution, 100 Yale L. J.
1131, 1162ff. (1991), Cottrol & Diamond, The Second Amendment:
Towards an Afro-Americanist Reconsideration, forthcoming in
Georgetown U. L. J. (1982).
5 United States v. Verdugo-Uriquez ___ U.S. ___, 110 S.Ct. 1056,
108 L.Ed. 2d 222, 232-33 (1990).
6 The Embarrassing Second Amendment, 99 Yale L. J., supra at 642.
7 Cf. a debate between the NRA's primary exponent of the Amendment
and myself as to the extent to which various moderate, sensible gun
controls are allowable under the individual right view we both
endorse. Halbrook, What the Framers Intended: A Linguistic Analysis
of the Right to "Bear Arms" 49 Law & Contemp. Probs. 151 (1986) vs.
Kates, The Second Amendment, 49 Law & Contemp. Probs. 143 (1986).
8 See, e.g., G. Newton & F. Zimring, Firearms and Violence in
American Life 259 (1970) (characterizing the Second Amendment "as
a scheme dealing with military service, not individual defense.").
9 R. Weighley, History of the United States Army 19 (1967). See
infra at notes ___ and ___ for discussion of the billeting of
criminous troops on the king's enemies as a punishment and means of
surveillance. Throughout the 18th Century, criminal offenses by
English soldiers and sailors in the colonies were a constant
occurrence, and a subject of constant antagonism between Americans
and the English military which refused either to punish their men
or to turn them over to local justice. See generally P. Maier, From
Resistance to Revolution: Colonial Radicals and the Development of
American Opposition to Britain.
10 3 W. Blackstone, Commentaries *4; see generally, T. Hobbes,
Leviathan, ch. XIII (1952).
11 Montesquieu, 2 Spirit of the Laws 60.
12 See, e.g. 2 Burlamqui, The Principles of Natural and Politic
Law 121 (
xix; Nugent transl.), Vattel, Law of Nations: Principles
of the Law of Nature 22 (J. Chitty ed.).
13 J. Locke, Concerning Civil Government (2nd essay) 72-73, 79
(1952), A. Sidney, Discourses Concerning Civil Government 175, 180-
1, 266-7, 270 (1698).
14 Writings of Thomas Paine 56 (M. Conway ed. 1894) (emphasis in
original).
15 The Commonplace Book of Thomas Jefferson 314 (G. Chinard ed.
1926) quoting C. Beccaria, An Essay on Crimes and Punishments 87-8
(1764).
16 Wills, "Handguns that Kill", WASHINGTON STAR, Jan. 18, 1981 and
"John Lennon's War", CHICAGO SUN TIMES, Dec. 12, 1980 and "Or
Worldwide Gun Control" PHILADELPHIA INQUIRER, May 17, 1981;
WASHINGTON POST editorial: "Guns and the Civilizing Process", Sept.
26, 1972, R. Clark, CRIME IN AMERICA 88 (1971).
17 Original Understanding, supra, 82 Mich. L. Rev. at 214-6,
Malcolm, supra, 10 Hast. Const. L. J. at 290-2.
18 H. Grotius, 1 De Jure Belli Et Pacis 54 (W. Whewell trans.
1853). See generally, Original Meaning, supra 82 Mich. L. Rev. at
214-6, Morn, Firearms Use and Police: A Historic Evolution in
American Values, in D. Kates (ed.), Firearms and Violence (1984).
19 See, respectively, Spirit of the Laws and Writings of Thomas
Paine, supra.
20 1 Decline and Fall of the Roman Empire 53 (Mod. Lib. ed.).
21 1 Commentaries *121, *143-4; see also 3 Commentaries *4.
22 A. Norman, The Medieval Soldier 73 (1971), 1 English Historical
Documents c. 500-1042, 427 (D. Whitelock ed. 1955), The Assize of
Arms 416 (1181), reprinted in II English Historical Documents (D.
Douglas & C. Greenaway eds. 1953).
23 Original Meaning, supra 82 Mich. L. Rev. at 230-2.
24 J. Barlow, ADVICE TO THE PRIVILEGED ORDERS IN THE SEVERAL
STATES OF EUROPE: RESULTING FROM THE NECESSITY AND PROPRIETY OF A
GENERAL REVOLUTION IN THE PRINCIPLE OF GOVERNMENT, Parts I and II
at 45 (London, 1792, 1795 & reprint 1956).
25 The Jefferson Cyclopedia 318 (Foley, ed., reissued 1967).
26 The Federalist, # 46 at 371.
27 J. Trenchard & W. Moyle, AN ARGUMENT SHEWING, THAT A STANDING
ARMY IS INCONSISTENT WITH A FREE GOVERNMENT, AND ABSOLUTELY
DESTRUCTIVE TO THE CONSTITUTION OF THE ENGLISH MONARCHY 7 (London,
1697).
28 Minimalist Interpretation, supra at p. 132.
29 Writings of Thomas Paine, supra.
30 Trenchard & Moyle, supra 12.
31 J. Barlow, ADVICE TO THE PRIVILEGED ORDERS IN THE SEVERAL
STATES OF EUROPE: RESULTING FROM THE NECESSITY AND PROPRIETY OF A
GENERAL REVOLUTION IN THE PRINCIPLE OF GOVERNMENT, Parts I and II
at 17 (London, 1792, 1795 & reprint 1956). See also 1 T. Dwight
TRAVELS IN NEW ENGLAND AND NEW YORK xiv (London, 1823).
32 F. Place, Improvement of the Working Classes (1834) as quoted
in R. Webb, Modern England: From the 18th Century to the Present
115, n. 14 (1970).
33 See generally Kessler, Gun Control and Political Power, 5 Law
& Pol'y Q. 381, 387, 391-93; Cottrol & Diamond, The Second
Amendment: Towards an Afro-Americanist Reconsideration, forthcoming
in Georgetown U. L. J. (1982), Kates, Toward a History of Handgun
Prohibition in the United States, in Restricting Handguns: The
Liberal Skeptics Speak Out 12-15, 18-19 (D. Kates ed.).
34 Restricting Handguns, supra at 185 (quoting official commentary
on the German Firearms Act of 1937 which explicitly excluded gun
permit applications by Jews). See id. at 188 (statement by Hermann
Goering, then head of the German police): "Certainly I shall use
the police--and most ruthlessly--whenever the German people are
hurt; but I refuse the notion that the police are protective troops
for Jewish stores. The police protect whoever comes into Germany
legitimately, but not Jewish usurers."
35 B. Tuchman, The March of Folly (1984)
36 This description is taken from A Journal of the Times (1768-
1769), a Boston publication expressing the Whig point of view that
was reprinted throughout the colonies and in England. Excerpted in
D. Dickerson, Boston Under Military Rule 61 (D. Dickerson ed.
1936).
37 Lord Chesterfield as quoted in Tuchman, supra, at 158.
38 For a detailed discussion of the events detailed in this and
the following paragraphs, see Halbrook, Encroachments of the Crown
on the Liberty of the Subject: Pre-Revolutionary Origins of the
Second Amendment, 15 U. Dayton L. Rev. 91 (1989).
39 From A Journal of the Times (1768-1769), a Boston publication
expressing the Whig point of view that was reprinted throughout the
colonies and in England. Excerpted in D. Dickerson, Boston Under
Military Rule 61 (D. Dickerson ed. 1936).
40 3 J. Eliott, Debates in the Several State Conventions 380 (2d
ed. 1836).
41 P. Maier, From Resistance to Revolution: Colonial Radicals and
the Development of American Opposition to Britain.
42 Anonymous, 21 Hen. VII, fol. 39, pl. 50. Earlier cases included
Dhutti's Case, Northumberland Assize Rolls (1255), 88 Publications
of Surtees Society 94 (1891) (household servant privileged to kill
nocturnal intruder); Rex v. Compton, 22 Liber Assisarum pl. 55
(1347) (homicide of burglar is no less justifiable than of criminal
who resists arrest under warrant); and Anonymous 1353, 26 Liber
Assisarum, (Edw. III), fol. 123, pl. 23 (householder privileged to
kill arsonist).
43 See expressions of opposition and horror cited in B. Tuchman,
The March of Folly 148 (1984) and R. Webb, supra at 184.
44 The British tradition of unarmed policing persists to this day
because crime, particularly violent crime, fell rapidly throughout
19th Century England; in contrast, as American violence increased
police seized the right to be armed by refusing to patrol unarmed.
C. Greenwood, Firearms Control: A Study of Armed Crime and Firearms
Control in England and Wales ch. 1 (1971), Morn, supra.
45 Aristotle, Politics 218 (J. Sinclair trans. 1962).
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