That Every Man Be Armed

The Evolution of a Constitutional Right. Revised and Updated Edition.

Stephen P. Halbrook

• Publisher: University of New Mexico Press
• Year: 2013
• ISBN:
  9780826352996
• Topic: Law
• Subtopic: Public Law
• Index: Law

That Every Man Be Armed, the first scholarly book on the Second Amendment to the U.S. Constitution, has played a significant role in constitutional debate and litigation since it was first published in 1984. Halbrook traces the right to bear arms from ancient Greece and Rome to the English republicans, then to the American Revolution and Constitution, through the Reconstruction period extending the right to African Americans, and onward to today's controversies. With reviews of recent literature and court decisions, this new edition ensures that Halbrook's study remains the most comprehensive general work on the right to keep and bear arms.

CHAPTER 1

THE ELEMENTARY BOOKS OF PUBLIC RIGHT

The right of the citizen to keep arms has roots deep in history. The American Revolution was sparked at Lexington and Concord, and in Virginia, by British attempts to disarm the individual and hence the militia. Thomas Jefferson once wrote that the authority of the Declaration of Independence rested “on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c.”¹ These sentiments, which attacked standing mercenary armies and vindicated the use of armed force to oppose tyranny, were also reflected in the Bill of Rights and indeed provide a jurisprudential commentary thereon.² Aristotle, Cicero, John Locke, and Algernon Sidney provided the philosophical justification of the armed sovereignty of the populace. On the other hand, Plato, Jean Bodin, Thomas Hobbes, and Sir Robert Filmer set forth the classical argument in favor of monarchial absolutism. Also among the “elementary books of public right” referred to by Jefferson were the works of Niccolò Machiavelli and James Harrington, whose analyses of the Roman republic and strategy of popular freedom clearly influenced the Whigs of 1688 and 1776; and of Jean Jacques Rousseau, the intellectual harbinger of the French Revolution. Montesquieu, Beccaria, Burgh, and Adam Smith were influential in the areas of legal theory, criminology, and political economy.

While relying to a great extent on Cicero, “the greatest orator, statesman, and philosopher of Rome”³ (in the words of John Adams), the founders of this nation based their thinking on the role of the Roman militia in great measure on Machiavelli. Machiavelli’s influence was clear in George Mason’s speech to the Fairfax Independent Militia Company,⁴ which was composed of volunteers who supplied their own arms and elected their own officers. When, according to Mason, the “essential maxims” of the Roman commonwealth were undermined, “their army no longer considered themselves the soldiers of the Republic, but as the troops of Marius or Sylla, of Pompey or of Caesar, of Marc Antony or of Octavius.”⁵ John Adams praised Machiavelli for his constitutional model for Florence (which included a popular militia) wherein “the sovereign power is lodged, both of right and in fact, in the citizens themselves.”⁶ Considering such influences, it is no wonder that the Second Amendment “affirms the relation between a popular militia and popular freedom in language directly descended from that of Machiavelli.…”⁷

For constitutional principles of government, the founders of our republic relied most on the seventeenth-century English republicans, who themselves had been deeply influenced by Aristotle, Cicero, and Machiavelli. Jefferson saw to it that Locke and Sidney would be required reading at the University of Virginia, for “as to the general principles of liberty and the rights of man, in nature and in society, the doctrines of Locke, in his ‘Essay concerning the true original extent and end of civil government,’ and of Sidney in his ‘Discourses on Government,’ may be considered as those generally approved by your fellow citizens of this, and the United States.”⁸ Relying on Locke to deny any governmental right to be absolutely arbitrary,⁹ Samuel Adams related: “Mr. Locke has often been quoted in the present dispute between Britain and her colonies, and very much to our purpose.”¹⁰ Like the Declaration of Independence, the Virginia Declaration of Rights of 1776, written by George Mason, contains specific phrases from Locke as well as from Cato’s Letters.¹¹ The same philosophers appeared in the last will and testament of Josiah Quincy Jr. who left “to my son when he shall arrive to the age of fifteen years, Algernon Sidney’s works, John Locke’s works, … and Cato’s Letters. May the spirit of liberty rest upon him!”¹²

In summary, the two categorical imperatives of the Second Amendment—that a militia of the body of the people is necessary to guarantee a free state and that all of the people all of the time (not just when called for organized militia duty) have a right to keep arms—derive from the classical philosophical texts concerning the experiences of ancient Greece and Rome and seventeenth-century England. Aristotle, Cicero, Machiavelli, and the English Whigs provided an armed populace with the philosophical vindication to counter oppression, which found expression in the Declaration of Independence and the Bill of Rights. In this sense, the people’s right to have their own arms was based on the philosophical and political writings of the greatest intellectuals of the past two thousand years.

An appreciation of the significance of these elementary books of public right is indispensable to a correct understanding of the meaning of the Bill of Rights, in general, and of the Second Amendment, in particular. Furthermore, an understanding of the authoritarian absolutism of Plato, Bodin, Hobbes,¹³ and Filmer is as necessary as an understanding of classical libertarian republicanism in order to know what America’s founders rejected as well as what they accepted. Those who drafted and supported the Bill of Rights followed the libertarian tradition of Aristotle, Cicero, and Sidney, and they rejected the authoritarian, if not totalitarian, tradition of Plato, Caesar, and Filmer. These two basic traditions in political philosophy have consistently enunciated opposing approaches to the question of people and arms, with the authoritarians rejecting the idea of an armed populace in favor of a helpless and obedient populace and the libertarian republicans accepting the armed populace and limiting the government by the consent of that armed populace.

The Citizen as Arms Bearer in Greek Polity: Plato and Aristotle

SPEAKING AS SOCRATES IN the Republic, Plato provided a comprehensive analysis of the social and political consequences of individual ownership of arms versus a state monopoly of arms. To refute the definition of justice as fulfilling promises and paying debts, Socrates suggested, in a counterexample, that one ought not “to return a deposit of arms or of any thing else to one who asks for it when he is not in his right senses; and yet a deposit cannot be denied to be a debt.”¹⁴ Since the return should not be made to one “not in his right mind,” repayment of a debt was not necessarily justice because “a friend ought always to do good to a friend and never evil.”¹⁵ By implication, individual possession of weapons by sane individuals was ethically acceptable to Socrates. Yet Socrates’s own definition of justice as the fulfillment of one’s proper function—at least as propounded by the more conservative Plato—rejected as degenerate the egalitarian democracy that an armed populace would predictably instate.¹⁶

An essential element of Plato’s explanation of political transformation in the Republic related to the tendencies of the unjust state to win privilege through “armed force” and of the “armed multitude” to abolish the unjust state in question. According to Plato, oligarchy arises when privilege based on wealth is fixed by statute. “This measure is carried through by armed force, unless they have already set up their constitution by terrorism.” The abuse resulting from the state monopoly of violence leads to a disunited state wherein the rich and poor continuously plot against each other. If a war with outside forces arises, the oligarchs are faced with the following dilemma: “Either they must call out the common people or not. If they do, they will have more to fear from the armed multitude than from the enemy; and if they do not, in the day of battle these oligarchs will find themselves only too literally a government of the few.”¹⁷

The development of an oligarchy into a democracy requires that the common people be armed. Former members of the ruling class who lose their wealth and power “long for a revolution; … these drones are armed and can sting.”¹⁸ Finally, “whether by force of arms or because the other party is terrorized into giving way,” the poor majority overcomes and establishes a democracy which grants the people “an equal share in civil rights and government.… Liberty and free speech are rife everywhere; anyone is allowed to do what he likes.”¹⁹ While Plato attacks democracy for exhibiting characteristics which today would be considered laudable, some of his remarks are nevertheless directed against a social order that retains political inequality and therefore cannot be considered a complete democracy. Thus, after the old oligarchy is replaced by a society progressing toward democracy, a strong leader arises who “begins stirring up one war after another,²⁰ in order that the people may feel their need of a leader, and also be so impoverished by taxation that they will be forced to think of nothing but winning their daily bread, instead of plotting against him.”²¹ Finally, the despot wins complete victory by reestablishing the state monopoly of arms:

Then, to be sure, the people will learn what sort of a creature it has bred and nursed to greatness in its bosom, until now the child is too strong for the parent to drive out.

Do you mean that the despot will dare to lay hands on this father of his and beat him if he resists?

Yes, when once he has disarmed him.²²

While Plato portrays tyranny as the ultimate degeneration of the state, his ideal state—the reign of the philosopher king—actually resembles tyranny. Both despotism and the ideal monarchy involve rule by one person, with the only difference being the alleged good intentions of the ideal monarch—a dubious check on despotism. Plato himself suggested that a young, educated despot may become the philosopher king.²³ After attacking the democratic ideal where “one man is trader, legislator, and warrior all in one,”²⁴ Plato devised a normative social structure with the ruling philosophers at the top, the soldier auxiliaries in the middle, and the working masses at the bottom. This pyramid sets the royal elite over the professional warriors and requires the “inferior multitude” to “mind their own business.”²⁵ The stage is thereby set for a tyranny, having monopolized the means of force, to exploit the majority.²⁶

Plato’s practical proposals for totalitarianism are set forth in the Laws, which anticipates a state of just over five thousand citizens plus numerous slaves.²⁷ While at one point designating warriors as a specialized class,²⁸ Plato elsewhere anticipates that the Director of Children and other instructors will discipline all girls, boys, women, and men with compulsory military exercises.²⁹ In discussing the Pyrrhic (war-dance), pankration (fighting with hands and feet), and armed contests, Plato would mandate that “the techniques of fighting” are “skills which all citizens, male and female, must take care to acquire.”³⁰ While the possession by the citizens of martial skills would suggest a mode for some form of popular control, the overwhelming power of the Guardians of the Laws would provide for state domination over every aspect of life. Unlike Aristotle, Plato nowhere hints that the citizens would have their own arms. Instead, arms seem to be placed in the citizen’s hands only for the temporary purpose of military exercise once per month.³¹

While failing to foresee that martial arts learned by the citizens may contribute to the protection of popular liberty, the Laws insists that “freedom from control must be uncompromisingly eliminated from the life of all men.…” By following the militarist examples of Sparta and...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Preface to the Revised and Updated Edition
• Preface to the Original Edition
• Introduction: Firearms Prohibition and Constitutional Rights
• Chapter 1 The Elementary Books of Public Right
• Chapter 2 The Common Law of England
• Chapter 3 The American Revolution and the Second Amendment
• Chapter 4 Antebellum Interpretations
• Chapter 5 Freedmen, Firearms, and the Fourteenth Amendment
• Chapter 6 The Supreme Court Speaks
• Chapter 7 State and Federal Judicial Decisions
• Afterword: Public Policy and the Right to Keep and Bear Arms
• Update to New Edition
• Notes
• Index