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

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 gaols [9] ) 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]

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":

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:

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

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:

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,

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

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:

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:

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

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:

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. [43]

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 (c 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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