The Right to Keep and Bear Arms |
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Much of today's debate
regarding the individual's right to keep and bear arms, has been shrouded by misapplying
various interpretations of the militia clause of the second amendment to the US
Constitution. The second amendment states:
The proponents of gun control insist that the second amendment only apply to an organized militia such as the National Guard. However they overlook the fact the National Guard in times of national crises, comes under direct control of the Federal Government. The Guard works in concert with the regular Army in carrying out the Federal military mission. This was finally put to rest when in the 1980s, then Minnesota Governor Rudy Perpich sued the Federal Government over control of the National Guard. The State of Minnesota lost the case and the Federal Government won. The act of federalizing the National Guard is due to the law passed by Congress on January 21, 1903. It provides that the "..organized militia known as the National Guard of the state, Territory or District of Columbia.. " is under the command of the Nation's Chief Executive. Furthermore, all arms are controlled by and owned by the Federal Government. If indeed the National Guard can be placed under Federal Control, then who is the unorganized militia? This question is rooted in historical precedence with ample evidence provided by the ancients, and contemporary thinkers that we are. That is to say, all able-bodied men (and now perhaps women) between the ages of 17 and 45 who are capable of acting in defense of the country. This definition also exits in the current United States Code [10 U.S.C. 311 (a)] which states:
The US Code further divides the militia into two classes: The organized, and the unorganized militia. The organized militia is viewed in the USC as the National Guard and Naval Militia, and the unorganized militia that consists of ".. all members of the militia who are not members of the National Guard or the Naval Militia." [10 U.S.C. 311 (c)] Advocates of gun control not only ignore the definition of militia as that of the citizen soldier, they also ignore that the final clause that uses the verbiage of the "..right of the people..", is the same application of the "the people as used in the First, Fourth, Ninth, and Tenth Amendments. The application of the First Amendment applies to an individual's right to free speech. The Fourth Amendment secures the individual against unreasonable searches and seizures of property by the government. If the Second Amendment were to be construed as a collective right, then it logically follows that only corporations or collective bodies (such as political parties) would have a right to free speech, and would be free from unreasonable search and seizures. Yet these Amendments have been interpreted to be individual rights due to the clause that refers to 'the people'. The people refer to the individuals that make up the general populace. It is precisely this definition that divides today's debate on gun control. The idea of the citizen soldier is older than ancient Rome. The unorganized militia provides for a citizen soldier to be the guardian of liberty and freedom. Where did this well established but often overlooked view of the militia originate? As will be seen, its history can be found in the most early discussions on politics: From Rome, to Greece, to Virginia. The most contemporary work on this subject, is: That Every Man Be Armed - The Evolution of a Constitutional Right by Attorney Stephen P. Halbrook. Halbrook's work is the most thorough and documented work on the Second Amendment this century. This paper relies heavily upon the work of Mr. Halbrook, and provides the necessary and proper credits in the bibliography. |
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The Ancient Greeks and Romans |
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In Plato's Republic, Plato
discusses how, through force, an unjust state could win favor. Oligarchy forms of
government occur when privilege is fixed by statute. (Republic 139-140.) Plato envisions a
move to a democracy, but retains much of the social inequality associated with absolutism.
The need for a strong leader is anticipated who would revert to absolute authority and
halt the march to democracy. Plato concludes:
The idea of a philosopher king that Plato contemplates, assumes the best in human nature and does not speculate on the more contemporary historical fragility of such assumptions. Even Catherine the Great of Russia, an enlightened despot, later reversed herself from enlightenment to absolutism (The Western Heritage, 653.) Whereas once a shrewd promoter of Voltaire and others, Catherine later burned his books and banned them from Russia. (The Western Heritage, 679.) Aristotle argued that citizens must be protected from tyranny, and that tyranny was achieved through the King's use of a standing army. (Politics, 82) Both Plato and Aristotle spoke of the King's use of the standing army to wage war, and to heavily tax the populace. These efforts would preoccupy the general populace to prevent an overthrow the oligarchy. (That Every Man be Armed, 12) Rome's Cicero also put forth the notion that an individual also has the right to bear arms in self defense. When defending Titus Annius Milo in 53 B.C. for the murder of Publius Claudius Pulcher, he stated: There are, many occasions on which homicide is justifiable. In particular, when violence is needed to repel violence, such an act is not merely justified but unavoidable" (Selected Political Speeches, 78-81) Here the natural law of self defense is eloquently stated by Cicero. Cicero states:
He further discusses the moral righteousness of using ".. every method to protect ourselves." Not only is Cicero speaking of the individual's right to bear arms in self defense from another individual, but also to defend one's person and property from violence by the state. Rome stood as a free republic until Gaius Marius abolished the citizen soldier in 49 B.C. (That Every Man Be Armed, 18) Caesar's reign marked the beginning of the Empire. Caesar was ruthless in his conquests. He would not accept surrender from his enemies until all the arms of the conquered town had been collected. He would mutilate those who bore arms against him by cutting off their hands. (That Every Man Be Armed, 18) Caesar knew that an armed populace was more difficult to conquer. |
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Machiavelli |
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Machiavelli was also a
believer in the citizen soldier or citizen militia. In his work Discourses on the First
Ten Books of Titus Livy, he praises Rome before the reign of Caesar. Machiavelli was also
against large standing armies as shown in the following passage.
Machiavelli also notes that:
The comparison of Machiavelli's writing to similar wording found in our Constitution proves to be surprisingly similar. Machiavelli wrote that private citizens made up the "..regular and well ordered militia.." (The Art of War, 39) and our Constitution reads "A well regulated Militia being necessary to the security of a free State.." To Machiavelli, well ordered, and to our founding fathers well regulated, meant the same thing: Citizens trained to arms. |
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Seventeenth Century Thought |
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In the 17th century, great
thinkers attempted to justify the existence of absolute rulers, while others such as
Algernon Sidney and John Locke argued for a democratic republic. In arguing for a
monarchy, Jean Bodin sees the deprivation of arms essential to maintaining a ruler's
authority. Bodin believed that such ruler's were above the law. Similar to today's argument's for gun control, Bodin saw arms control as a means of people control, to control the masses and prevent seditions. Similar to today, the arguments used in achieving an unarmed populace were to prevent murders, and seditions. Bodin states in his Six Bookes of A Commonweale (1606),
To Bodin, the ruling monarchy was to be placed above the laws that governed their subjects. Acts not unlike what Bodin had envisioned, occur today where citizens are disarmed by law, yet the privileged class is exempted. John Locke was also an advocate of the citizen soldier. Locke explained in great detail in his Two Treatises on Civil Government (1689), that government of man must be based on mutual consent, and that each individual remains free due to the natural laws of nature. Because of this, each man has the right to overthrow a despotic government. As each individual maintains their natural rights, they also have the right to defend those rights against any individual or group who threatens them. Locke wrote:
Locke firmly believed that man had a moral right to use force to overthrow an unjust government. That the right to resist an unjust government with arms was little different than protecting one's self from an individual's aggression. |
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Framer's Intent |
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Locke's influence on our
founding fathers was profound. His major contribution that all men retain their natural
rights to life, liberty, and property became a major influence on how our Constitution was
written. The Virginia Declaration of Rights, (which was largely written by George Mason on
June 12, 1776), nearly echoed verbatim Locke's views on natural rights. Article One
states:
Article 13 of the Virginia Bill of Rights further states:
Here again we plainly see that the early framers of the Declaration of Rights believed that the new nation's security rested upon a citizen militia. The idea presupposes a natural right for the citizens to keep and bear arms. Virginia's Declaration of Rights would later serve as the model for our own Constitution. During the Philadelphia Convention of 1788, Patrick Henry argued passionately for the individual's rights against the Federalists James Madison and Edmund Randolf. Henry was insistent that the new Constitution of the United States contain a Bill of Rights similar to Virginia's. Madison did not believe one was necessary as the people retained the right to overthrow an unjust government. He also believed that all rights not given up to the new government were retained by the people. Henry and Mason both argued against ratifying the new Constitution unless specific right's were enumerated as had been done with their own State Constitution. Randolf, himself an ally of Madison's, refused to sign the new Constitution unless a Bill of Rights were present. (Madison and The Bill of Rights, 4) The original language of the Second Amendment as proposed by Madison, read:
Madison added the language of the right to keep and bear arms in first draft. A right of the people. The wording the house committee chose read:
This draft, reversed the people and militia clauses but retained Madison's conscientious objector clause. Additionally author Halbrook points out that it is clearly shown from Madison's notes that he would use to propose the Amendment:
The Senate version dropped the conscientious objector clause all together, and what was to become our nation's second amendment was finally adopted by the states:
During the House debates, of our Second Amendment, Representative Elbridge Gerry begged the question:
The well-regulated clause of the second amendment suggests that the citizen soldier must retain not only the right to keep and bear arms, but must be proficient in their use. (That Every Man Be Armed, 78) The argument that the "well-regulated militia" clause implies a collective rather than an individual right can be rebuked with the Federalist Papers number 29, where Alexander Hamilton wrote:
Here, as can be clearly seen, a well-regulated militia is composed of ordinary citizens who are trained to arms. The contemporary argument used by gun control advocates that the militia clause means only police or the government should be allowed to have arms, has no historical, or factual precedence what so ever. |
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Conclusion |
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The militia is quite simply you and me. It is our moral duty to be proficient in the use of arms for our own self preservation and that of our country. Standing armies have been viewed as the bane of liberty, and not the protectors of it. Freemen have a right and moral duty to oppose the unlawful taking of our natural rights by any means available to us. As radical and revolutionary as this may sound today, it has been said many times before. It is as true today as it was in Ancient Rome, Sparta, or in Eighteenth Century Virginia. | |
Works Cited |
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Plato, Republic
139-140 (E. Vornford translation. 1945), as cited by Halbrook, Stephen P., That Every Man
Be Armed, p. 9. The LibertyTree Press, San Francisco CA. 1984. Plato, Republic, p. 295 (E. Vornford translation. 1945), as cited by Halbrook, Stephen P., That Every Man Be Armed, p. 10. The LibertyTree Press, San Francisco CA. Kagan D., and Ozment S., and Turner F., The Western Heritage (Fourth Edition, Volume II), p. 653. Macmillan Publishing Company, NY, 1987. Id. at 679. Aristotle, Politics, p. 82, as cited by Halbrook, Stephen P., That Every Man Be Armed, p. 9. The LibertyTree Press, San Francisco CA. 1984. Halbrook, Stephen P., That Every Man Be Armed, p. 12. The LibertyTree Press, San Francisco CA. 1984. Cicero, Selected Political Speeches, pp. 79-81 (M. Grant transl.1969), as cited by Halbrook, Stephen P., That Every Man Be Armed, p. 16. The LibertyTree Press, San Francisco CA. Halbrook, Stephen P., That Every Man Be Armed, p. 18. The LibertyTree Press, San Francisco CA. 1984. Machiavelli, Discourses, p. 107, as cited by Halbrook, Stephen P., That Every Man Be Armed, p. 21. The LibertyTree Press, San Francisco CA. 1984. Machiavelli, The Art of War, p. 18, as cited by Halbrook, Stephen P., That Every Man Be Armed, p. 22. The LibertyTree Press, San Francisco CA. 1984. Machiavelli, The Art of War, p.39, as cited by Halbrook, Stephen P., That Every Man Be Armed, p. 22. The LibertyTree Press, San Francisco CA. 1984. Bodin, Jean, Six Books on A Commonweale, p. 106, as cited by Halbrook, Stephen P., That Every Man Be Armed, p. 25. The LibertyTree Press, San Francisco CA. 1984. Locke, John, Second Treatise of Civil Government, p.14, (Chicago 1955), as cited by Halbrook, Stephen P., That Every Man Be Armed, p. 22. The LibertyTree Press, San Francisco CA. 1984. McCabe, Michael K., Madison & The Bill Of Rights, p. 4, American Rifleman, Feb., Mar., Apr., 1991. National Rifle Association, Washington DC. Id. at 5. Halbrook, Stephen P., That Every Man Be Armed, p. 76. The LibertyTree Press, San Francisco CA. 1984. Id. at 78. |
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Copyright Notice First Published: January 10, 1993 |
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This
Research Brief is a copyrighted work of Gary A. Shade. This brief can be freely
distributed and copied for personal use under the following stipulations:
You may contact Gary Shade at: (612) 891-1537 or (612) 431-6733 (Shade's Landing Inc & Fax) [email protected]
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