Self-Government and the Unalienable Right of
Self-Defense: Restoring the Second Amendment
by Erich M. Pratt
IV. Modern Developments Since the Bill of Rights
A. The Second Amendment as the Source of a Right
B. A Collective Right
C. The National Guard as the Militia
D. An Outside-in Mentality>
Appendix A: Laws of Nature and of Nature’s God
Appendix B: Pacifism and the Founding Fathers
Since the adoption of the Bill of Rights, Second Amendment issues have rarely ever reached the steps of the Supreme Court. Nevertheless, there has been much debate both on the right to keep and bear arms and on self-defense in general. Today, the right of self-defense is understood quite differently than when the nation was founded. According to many, self-defense is no longer an unalienable right, an assumption which has led to many wrong interpretations of the Second Amendment. This chapter discusses four common errors which occur in the Second Amendment debates.
In justifying the right to keep and bear arms, many scholars are very dependent upon the language of the Second Amendment. For example, Joyce Malcolm asserts that, “Few would disagree that the crux of the [right to keep and bear arms] controversy is the construction of the Second Amendment.”136 The American Bar Association agrees. They state that the heart of the debate over the right to keep and bear arms is the “construction of the Second Amendment.”137
The problem with placing the emphasis upon the language of the Amendment, and not the natural right of self-defense, is that the text becomes the primary expositor of the right to bear arms. To make the text the “crux of the controversy” assumes that the Second Amendment is a grant of power; that it gives people the right to keep and bear arms. This presents two problems, the first of which is an overemphasis upon the “framers’ intent.”138 After all, if it is the text that gives people the right to bear arms, then one would certainly want to know the intent of those who drafted the text. But while the intent of the framers is important, it should not be the heart of the debate because the right to keep and bear arms is rooted in a firm foundation which precedes the “framers’ intent.” That foundation is the unalienable right of self-defense, which in the language of the Declaration, is a right “endowed by the Creator.”
If the right to keep and bear arms stems solely from the intent of the Congress that enacted the Amendment, then that right will not be secure for long. A government which has the power to grant a right has the power to revoke the same — including the right of free speech, free assembly, free press, etc. On the other hand, a God-given right will be much more secure. Since the unalienable right of self-defense is given by God, it cannot be revoked or weakened by government. As long as there is evil in the world, and there are evil people using guns, the right to have arms will be necessary to secure one’s self-defense.
Therefore, the real crux of the controversy is, who gives man his rights: the Creator or the government? If self-defense is a God-given right, then it cannot be depreciated or annulled by the government. Self-defense must be the starting point for any discussion of the right to keep and bear arms.
A second problem which results from deriving the right to bear arms from the language of the Second Amendment is that the role of history will be overemphasized. One scholar states that “if the crux of the controversy is the construction of the Second Amendment, the key to that construction is the English tradition the colonists inherited, and the English Bill of Rights from which much of the American Bill of Rights was drawn.”139
Granted, a good historical argument has its place, but it should not be “the key” to unlocking the meaning of the Second Amendment. Otherwise, one might assume that the right to keep and bear arms simply evolved out of the Anglo-American past. On such an assumption, one may completely overlook the important right of self-defense, which is at the heart of the right to bear arms.
For example, the National Coalition to Ban Handguns stated in 1982 that “the American ‘right to bear arms’ developed at the time of the revolution.” Furthermore, they claimed that the right “grew out of the duty imposed on the early colonists to keep arms for the defense of their isolated and endangered communities.”140 The assumption here was that the right to bear arms only existed because the colonists were living in “isolated and endangered communities,” and the government had “imposed” the duty of self-defense upon them. In other words, the right to bear arms was completely dependent upon the circumstances.
John Levin has also advanced this very position: “After over three centuries, the right to bear arms is becoming anachronistic. As the policing of society becomes more efficient, the need for arms for personal self-defense becomes more irrelevant.”141 Levin’s statement was based on the same assumption as the one by the N.C.B.H. They both assume that the right of personal self-defense can evolve as the times change. Individuals may have the right of self-defense in one century, but may loose that right in the next.
If rights change with the times, however, then all our rights are in danger — including the right of a free press, assembly, speech, etc. Arguing that an efficient police force makes the right to have arms “anachronistic” is like arguing that a government’s efficient use of print and electronic media makes the right of free press “more irrelevant.”
But natural rights do not change with time; nor are they dependent upon the circumstances. They are gifts from God; unchanging and irrevocable. Self-defense is an unalienable right, and the right to bear arms is necessary to secure this right.
Again, self-defense is the crux of the issue. But this time the question is, who gives man his rights: God or history?
Since the drafting of the Bill of Rights, there have been three predominant views concerning the Second Amendment. The first view said that the right to keep and bear arms was an individual right. This was first expressed in James Madison’s notes, which stated that the amendments “relate 1st. to private rights.”142
This theme was also expressed in the Dred Scott decision, where the court enumerated some of the rights which belong to every American citizen. The Court in this decision projected that if blacks were to become citizens of the United States, they would be entitled to the same rights as everyone else. The Court stated that to recognize blacks as citizens,
would give to persons of the negro race, who are recognized as citizens in any one state of the Union, the right to enter every other state, whenever they pleased. . . . [A]nd it would give them full liberty of speech in public and in private . . . to hold public meetings upon political affairs, and to keep and carry arms wherever they went.143 (Emphasis added.)
The second view of the Second Amendment arose after the Civil War. This view recognizes that every citizen can keep and bear arms, but the weapons possessed must be able to be used for militia purposes. This view was expressed in U. S. v. Miller, 307 U. S. 174 (1939).
In this decision, the Court recognized that every citizen had a right and duty to have arms. The Court stated,
The signification attributed to the term Militia appears from the debates in the [Constitutional] Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense . . . [a]nd further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. (Emphasis added.)
The Court, however, said that the weapons protected by the Second Amendment must fit a militia purpose:
In the absence of any evidence tending to show that possession or use of any “shotgun having a barrel of less then eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
The third view of the Second Amendment limits the person and the weapon to militia duty. That is, the right to keep and bear arms applies only to members of the militia. Or to put it more broadly, this right applies to only the police, the militia on duty and the army.
While this view has not been espoused by the Supreme Court, it is very popular at the state level, as well as in the law journals. For example, in 1976 the Supreme Court of Massachusetts stated that the Second Amendment “is not directed to guaranteeing the rights of individuals.” Rather, the “Second Amendment to the Constitution is to be read as an assurance that the national government will give the state militias some freedom from national interference.”144 In other words, the Second Amendment only gives members of the militia the right to keep and bear arms.
Similar to the Massachusetts Supreme Court, the National Coalition to Ban Handguns states that the Second Amendment only refers “to the people’s collective right to bear arms as members of a well-regulated and authorized militia. . . . [T]he Second Amendment does not guarantee an individual right to bear arms.”145 (Emphasis added.)
This is the controversy today: is the right to keep and bear arms a collective or an individual right? In reality, the collective rights view is better labeled a “state rights” view because the proponents of this view apply the right to keep and bear arms to the state. For example, Roy Weatherup, a collective rights proponent, asserts that the Second Amendment “was designed solely to protect the states against the general government, not to create a personal right which either state or federal authorities are bound to respect.”146
There are two problems if one chooses to side with the collectivist camp. First, the collective view is guilty of equivocation. If the right of the people only refers to the people as a collective whole, or to the states in exclusion of the people as individuals, then the same must be said of the rights of the people in the First, Fourth, Ninth and Tenth Amendments. But because no one is willing to argue that individuals do not have a personal right to peaceably assemble or to petition their government, then one cannot dismiss the guarantee of individual protection in the Second Amendment.
More importantly, the collective view prohibits individuals from keeping and bearing arms, which in effect, denies citizens the best means of personal self-defense. “Collective right” advocates wish to transfer the duty of self-defense from the individual to the collective whole; this is an outside-in approach to self-defense, and it is contrary to the laws of nature and of nature’s God. The authority of self-defense, as well as the means to secure it, originates in the people, not in the government.
“A ‘well-regulated militia, ” says the National Coalition to Ban Handguns, “is [today] represented by the National Guard.”147 This statement reveals the current majority view concerning the militia. Most people would argue that the militia of the Second Amendment is the National Guard.
This is not the case, however. One year after the Second Amendment was added to the Constitution in 1791, Congress provided for the national defense by regulating the militia. The Militia Act of 1792 declared that every white, male citizen between the ages of 17 and 45 was to be a member of the militia. Furthermore, every citizen was to be armed. The Act stated that “every citizen so enrolled . . . [shall] provide himself with a good musket, or firelock, a sufficient bayonet and belt, two spare flints…”148
Every citizen, as a matter of self-government, was seen to have a duty to defend his state and his country. There was no National Guard at this point. Everyone was to be armed and ready to fight. In 1824, the Seventh Regiment of the New York State Militia assumed the title of “National Guards.” This title became popular after 1878 with the founding of the National Guard Association of the United States. At this time, the organized militias of the several states became known as the National Guard.149
The Dick Act of 1903 officially recognized the National Guard and separated the militia into two classes: the organized militia and the unorganized militia. The organized militias were the National Guard militias in every state. The unorganized militias were made up of everyone else, that is, everyone of age between 17 and 45.150
The National Guard Act of 1933 made the organized militia a part of the United States Army. The Act declares that, “the federally recognized National Guard shall at all times, whether in peace or war, be a component of the Army of the United States.”151 The National Guard, however, did maintain its militia status. The Act states that “the National Guard as created and existing under the present National Defense Act is the Organized Militia of the States. . .”152
Clearly, the National Guard was never intended to fully comprise the militia — neither in the 1700’s, nor at the present time. This is affirmed in the United States Code. It states unequivocably that, “The militia of the United States consists of all able-bodied males at least 17 years of age and . . . under 45 years of age.”153 The U.S.C. then reaffirms the previous Congressional acts by dividing the militia into the unorganized and the organized militia.
The problem with this classification is that it forms a select militia — the National Guard. (A select militia is a small core of men who bear the brunt of the militia duty.) Most founding fathers disliked select militias because they denied man’s self-governing nature.154 Defense, by nature, was seen to be the duty of every individual. A select militia, however, delegated this duty to a select few.
Richard Henry Lee, who was a signer of the Declaration of Independence, a delegate to the Virginia state convention, and one of the first U.S. Senators, was very outspoken concerning the evils of a select militia. Lee believed that,
To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them . . . . The mind that aims at a select militia, must be influenced by a truly anti-republican principle.155
Why anti-republican? Because the issue of equality was at stake. A select militia, established by law, would produce apathy in the general public. By fiat, this would create a special class of citizens who were entitled to bear arms. But Lee argued that to preserve liberty, the general public must be armed. Everyone must be armed and equally prepared.
George Mason stated that the best way to disarm and thus to enslave the citizenry was “by totally disusing and neglecting the militia.”156 And the best way to disuse and neglect the militia, according to Lee, was to maintain a select militia. “Establishing a select corps of militia,” he stated, tended “to render this general militia useless and defenseless.”157
An unprepared and defenseless citizenry is the consequence of denying the law of self-defense. This law operates from the inside-out, which means that every citizen is responsible for the defense of their state. As self-governed individuals, citizens should not delegate this important duty to someone else. To do so might cause the people to lose their vigilance, and once vigilance deteriorates, liberty will soon follow the same path. As Wendell Phillips once said, “Eternal vigilance is the price of liberty.”158
Another problem is that many legal scholars have adopted an outside-in approach toward self-defense, that is, they assume that only the government should defend the people. For example, the American Civil Liberties Union (A.C.L.U.) states that “Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected.”159 But if individuals do not have a right to bear arms, as is suggested by this statement, then they will have to rely on the police and military for their protection. The assumption here is that the the authority for self-defense originates in government, not the people. The A.C.L.U. denies the truth that individual self-defense is both a fixed law of nature and an unalienable right that is “endowed by the Creator.”
There are serious repercussions for ignoring the laws of nature. If one ignores the law of gravity and walks off a building, tragic consequences will result. And if a government ignores the natural right of self-defense by denying its citizens this right, tragedies will also result.
Several U.S. cities have passed gun control laws and thus hindered the peoples’ ability to defend themselves. One such city, Washington, D.C., has very strict gun control laws. As a result, the District of Columbia has forced its citizens to rely upon the police for their protection. The inside-out principle has been inverted so that now the government exercises the primary duty of self-defense. Consequently, there have been tragic effects.
For example, Warren v. District of Columbia, D.C. App., 444 A. 2d 1, (1981), involved a case where a woman was gang raped for 14 hours. This was done even though she had phoned the police twice before they broke into her apartment. The police never arrived. Ms. Warren sued the District of Columbia for negligence in providing for police protection, but the court ruled in favor of the District, stating that the “Government and its agents are under no general duty to provide . . . police protection, to any particular individual citizen, but, rather, duty to provide public services is owed to public at large.”
This case is not mentioned here to point the finger at the police. Human error will always occur. The point to emphasize, however, is that a reliance upon an outside-in approach to self-defense is contradictory to the laws of nature, and it is bound to bring tragic consequences. Warren v. District of Columbia is an example of such a tragedy. A woman is told that the police have no duty to protect her as an individual, and yet the laws of her city prevent her from adequately protecting herself.160
Self-governing individuals are primarily responsible for their own defense. This is a law of nature which in recent years has been ignored by legal scholars who, as a result, have adopted a view similar to that of King George III — a view which attributes the original authority for defense to the government.
At the heart of this controversy is a view of law. The founding fathers believed that law was both fixed and God-revealed. Furthermore, they believed that it was their duty to codify these pre-existing principles in their legal documents.
On the other hand, today’s legal scholars view law as evolving, always changing. Law is not seen as God-given, but is what a majority or the state says is law. The duty of the legislatures today is not to codify pre-existing principles, but to create laws that will reach a desired result.
This evolving view of law has led to the belief that self-defense is a duty for military and police bodies, not for individuals. This view is argued by John Levin who states that,
As the policing of society becomes more efficient, the need for arms for personal self-defense becomes more irrelevant; and . . . [as] the military power in the hands of the government [becomes] more powerful, and the government itself more responsive, the right to bear arms becomes more futile, meaningless and dangerous.161
His assumption is that an outside-in approach to self-defense is a valid alternative to the inside-out principle. This assumption, which is prevalent in many writings, is justified for several reasons. Levin assumes that an outside-in approach is more efficient. Others assume that an outside-in approach will reduce crime. They argue that fewer weapons in the hands of individual citizens will bring about a decrease in the crime rate.162 Still others say that gun control is necessary to reduce dangerous accidents.
The one theme in common with all of these arguments is that they all are striving for a desired effect in society. One person wants efficiency, while another wants crime control. In effect, each uses the law as an instrument for social control, but in total disregard to the law of self-defense which works from the individual-outward.
The implicit assumption is that man, with his own unaided reason, can devise laws which will improve society, even if those laws run contrary to the laws of nature. This assumption requires faith; a faith unsupported by good and sufficient evidence; a faith that runs contrary to the reasonable faith of the founding fathers. In the Declaration of Independence, the founders did not appeal to pragmatism, or to the desired effect they hoped to achieve in society. They appealed to a higher law, a law given by God which they termed “the Laws of Nature and of Nature’s God.”
In order to secure the right of self-defense, the state and national governments should pursue the following four policies.
First, the national government should remain faithful to the principle of self-defense. The Constitution assumes that Congress will not perpetually maintain an army because defense was supposed to be the duty of individuals, organized in their state militias. In implementing this principle, however, Congress should proceed with caution. Congress does not have to dismantle the entire army to remain true to the inside-out principle of self-defense. Certainly, a few officers must remain full-time to train the militia. But because a citizen can learn the trade of “soldiering,” he may replace the need of the average professional soldier. (See Appendix C.)
While some might argue that standing armies are a necessity in the 20th century, Switzerland has shown that a well regulated militia is an effective alternative. Major General George Patton (Ret) reported that the Swiss were able to dissuade Adolph Hitler from attacking their country.163 The deterrent, Patton declares, was largely due to the vigilance of the Swiss militia:
Within 48 hours, the Swiss can field an army of more than 600,000 men, 100,000 more than the present army of West Germany. . . . Yet, there is no standing Army, no bunker mentality, no enormous drain on the Swiss economy, no militaristic threat to Europe’s oldest and most fiercely independent democracy. The basis for conscription is the constitution, which mandates military service for every Swiss male from age 20 to 50 (55 in the case of officers). . . . At age 20, recruits report for 17 weeks of training. . . . At the end of the training cycle, the recruit . . . returns home. He carries with him his rifle, an allotment of ammunition, uniforms, military pack, and CBR mask. He is responsible for the maintenance of this equipment and is inspected annually. Once a year he is also required to qualify with his personal weapon on a rifle range or face an additional three days of training. Once a year, he will report for three weeks of military training in a rugged field exercise set up as a problem of the type which his particular unit would face.
The armed population is no bluff. Swiss militiamen are not required to turn in their weapons upon completion of their obligation. It is said that every Swiss home contains at least three weapons, for not only is there the militia system, but there is a long tradition of civilian ownership of firearms and, as pointed out before, rifle and pistol shooting are virtually the national sports of Switzerland. There are few restrictions on the Swiss purchase, ownership or carrying, of firearms. An armed occupation force would indeed be literally faced with the prospect of a Swiss rifleman behind every tree.164
The militia can be effective in the 20th century, even in a world inundated with nuclear arms. Switzerland has an extensive civil defense system which helps protect them from “nuclear blackmail:”
The Swiss have shelter space for 85 percent of the population and by 1990 plan to have 100 percent of the population covered. In many cases, there will be two shelter spaces per person — one at the place of work and one at home.165
The Swiss example shows that even in the 20th century a nation can implement an inside-out approach to self-defense. Switzerland has kept the power of self-defense in the people and has not delegated that power to the national government.
Second, the citizens of every state should be educated about the existence and duties of the militia. The states can do this, for example, through both electronic and print mass media. Every male citizen should understand that upon his eighteenth birthday he becomes a member of the militia. Furthermore, every citizen should know that self-governing individuals are primarily responsible for defending their state. This is vitally important to preserving liberty.
Third, there should be no “organized/unorganized” distinction in the militia. As set forth in the Militia Act of 1792 (which was not repealed until 1903), the entire citizenry was the “organized” militia. The states could return to this policy by training the citizenry to become part of a well-regulated militia. It should be every citizen’s duty to be armed, trained, vigilant and active in his state militia, thereby resulting in no “unorganized” militia.
In training the citizen-army, the states could follow the Swiss model. Every male in his twentieth year could serve his militia duty for four months, and then every year following, for three or four weeks. The advantages to having such a militia would be numerous. First, everyone would fulfill his duty to defend his person, family and community. Second, the U.S. would truly have an armed populace — in the militia alone would be a reserve force of 50 million people bearing arms and trained in the use of those arms.166 Third, a general militia would also provide an enormous “active” force. There are approximately 50 million males between the ages of 18 and 44 in the United States.167 If every male were required to spend a month in training every year, then at any one time, there would be over four million “active” militiamen. This is over four times larger than the present size of the U.S. Army.168 A full-time officer staff (no more than 10,000 would be needed) could both train the militia and provide the core staff to lead the citizen-army in a time of crisis.
In case the states should not wish to abolish the undesirable, “organized/unorganized” militia distinction, they should at least encourage more citizen involvement in the state defense forces which have recently developed. (These defense forces are a back-up to the National Guard troops, and while not the organized militia, they are more established than the unorganized militia.) The defense forces are comprised of citizens who meet regularly to be trained in the following duties: meeting domestic emergencies; providing external physical security of key facilities; maintaining law and order; suppressing riots or insurrections; and assisting, preventing or suppressing terrorism. To increase awareness, the states should spend money to advertise these defense forces and let their citizens know that this option to get involved exists.
The goal for the states should be to achieve 100 percent participation. Like ancient Israel and Rome, medieval England, the early United States and modern-day Switzerland, the states should require all of their citizens to participate in militia duty.
Finally, every state should require its citizens to be armed. The United States has a long history of such a policy: the early colonies; the Militia Act of 1792; and Kennesaw, Georgia in 1982. In keeping with these policies, the states and localities should repeal their gun control laws -for example, Maryland; Morton Grove, Illinois; and Washington, D.C.
Similarly, Congress should repeal its gun control legislation and instead pursue Constitutional policies that respect the federal nature of the nation. The United States government is one of limited and enumerated powers, and no power was given to Congress to confiscate weapons. Citizens must exercise their right to have arms in order to thwart possible encroachments by the national government upon their liberties. They also must be able to defend themselves and their community.
In conclusion, the state and national civil authorities should pursue policies which will encourage more individuals to exercise their duties as citizens. Self-defense belongs primarily to the people, and a return to the principles embodied in the Second Amendment will both ensure the preservation of this unalienable right and help maintain the liberty of this nation. It is but false security to place the liberty and happiness of a people entirely in the hands of their government, their military or their neighbor.
LAWS OF NATURE AND OF NATURE’S GOD1
Thomas Jefferson stated that the object of the Declaration of Independence was “not to find out new principles, or new arguments, never before thought of . . . but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent.”2 But what was the common sense of the subject? What were those principles on which everyone could agree?
Those principles were the “Laws of Nature and of Nature’s God.” To the founders, this phrase meant the following: 1) That law was given by God; 2) That this higher law was binding upon everyone both ruler and citizen; and 3) That this higher law was revealed in nature and in the Bible.
“The Laws of Nature and of Nature’s God” was not an original term for the founders since both John Locke and William Blackstone had used this terminology before them. These commentators had a profound impact upon the thinking of the founders.
Donald Lutz, who has done a ten-year comprehensive reading of American political writings published in the latter half of the eighteenth century, has determined which European authors had the greatest influence upon the founding fathers. His study has revealed that both Locke and Blackstone were among the top three most frequently cited writers during the founding era.3
Lutz reports that Locke was cited more often than any other author when the colonists were Justifying their break with England.4 Interestingly, Locke’s terminology bears striking resemblance to the text of the Declaration. Locke believed that God had revealed His laws in the Bible and in nature. This is evidenced by his use of the phrase “the law of God, and the law of nature,” which he describes as the higher law.5 All human laws, he asserted, had to be in conformity with God’s higher law:
The law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for men’s actions, must . . . be conformable to the law of nature i.e., to the will of God . . . [and must be] without contradiction to any positive law of scripture.6
In this quote, Locke referred to the “law of scripture and the law of nature.” Elsewhere, however, he used the phrase “the law of God, and the law of nature.” For Locke, both phrases meant the same thing because he used both interchangeably.7 And it was the language of the latter expression (that is, the law of God and the law of nature), with minor stylistic changes, that eventually worked its way into the Declaration.
Yet Locke was not the only one to speak of “the law of God, and the law of nature.” These ideas were rooted deep in the heart of the common law.8 What the common law has to say is key because the founders were steeped in its thinking. The Supreme Court in Ex Parte Grossman, 267 U.S., 87 (1924) asserted this very fact:
(The Founders) were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. . . . [W]hen they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they would be shortly and easily understood.
The most influential commentator of the common law was Sir William Blackstone. His Commentaries were widely read in the colonies and were foundational in the formative stages of American law. Lutz observes that Blackstone was “the second most prominent secular writer [cited] during the founding era” and that “a trenchant reference to Blackstone could quickly end an argument.”9
Blackstone also spoke of “the laws of nature and the laws of God”. He stated that,
Man, considered as a creature, must necessarily be subject to the laws of his creator. . . . This will of his maker is called the law of nature. . . . [and] is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this.10
Thus, Blackstone believed that God had fixed certain laws in the creation. But because man’s reason is corrupt, Blackstone felt that man could not fully discern what those laws were.11 He thought that man needed for God to reveal those laws to him in an understandable form; and he asserted that God did this in the Bible:
The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature. . . . Upon these two foundations, the law of nature and the law of revelation, depend all human laws.12
Thus, Blackstone believed that “the law of nature and the law of revelation” is the higher law by which men must live. Blackstone also called this higher law, “the law of nature, and the law of God.”13 This phrase was for Blackstone a shorthand way to say God’s revelation in nature and in the Bible. Locke, Blackstone and the founding fathers placed a high primacy on God’s revelation. In fact, Lutz’s study found that the most frequently quoted book during the founding era was the book of Deuteronomy a book dealing with God’s revealed laws.14
In conclusion, the “Laws of Nature and of Nature’s God” was a concept that had its roots in the common law. This phrase was also included in the Declaration meaning that it would have been understood by almost everyone. After all, Jefferson was not seeking “to find out new principles, or new arguments, never before thought of;” rather, he was trying “to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent.” In part, this “common sense” was that the laws of nature and the laws of God were to be found in the Bible and that they were binding on all peoples and nations.
PACIFISM AND THE FOUNDING FATHERS
Most colonial preachers in the 1700’s were not pacifists. In 1770, Samuel Stillman argued that self-defense is a law of nature which was revealed in the Old Testament and reaffirmed in the New:
SELF-DEFENSE is an established law of our nature, and first dictate of common sense; which has never been superseded by any written law of God, or by the religion of Jesus. . . . During the old testament dispensation . . . some of the best of men were the greatest soldiers, as Abraham, Joshua, David, &c. And even in the New Testament, we learn . . . [that when] the soldiers asked John, what they should do? he did not take the opportunity, which was very favourable, to inform them that their employment was unlawful but rather directs them to do violence to no man . to be content with their wages; which plainly implies a continuance in their employment.
WHEN Peter went to Cornelius. . we do not read that he made any attempt to convince him, that the military character was incompatible with the gospel of Christ. . . . His silence therefore in this matter, implies that a man may be at the same time a real disciple of Christ and a good soldier.
THE same thing is taught us by Christ himself. If my kingdom were of this world, then would my disciples fight . . . . [H]e declares, had it [his kingdom] been temporal, they would have fought in his defence, agreeable to the maxims of earthly Potentates. Therein teaching us, that to defend ourselves is lawful.1
Similarly, Nathanael Robbins stated that using arms may be necessary for self-defense. In a 1772 sermon, Robbins argued that,
Self-defence may require the use of warlike weapons, or taking up arms to prevent an incursion evidently intended, and the effusion of human blood, which would be the probable consequence of it. . . . David, who well knew the safety of making God his trust, and that this was his principal defence; we accordingly find praying to him for all kinds of prosperity in Jerusalem; yet we also find him blessing God, who had taught his hands to war, and his fingers to fight. . . . And we find our Saviour Himself minding his disciples to expect, that their enemies would be more fierce upon them, than they had been: And accordingly he gives warning, that he amongst them, that had no sword, wherewith to defend Himself, might find great want of one, and might therefore be ready to wish, some time or other that he had sold his garment and bought one [See Luke 22:36-38].2
John Lathrop agreed with Robbins. In quoting St. Chrysostom, Lanthrop sheds light on a difficult New Testament passage. In the following text, Christ rebukes a disciple for striking with his sword when there was no occasion for self-defense:
For all they that take the sword shall perish with the sword [Matthew 26:52] . . . . “For a man to take the sword, is to draw it when it is not put into his hands by the laws; therefore he who offers unjust violence, takes the sword: But on the other hand, he who uses a just defence does not take thy sword, but he draws a sword which the laws put into his hands.”3
Finally, Simeon Howard took some time in a sermon to address some of the objections raised by pacifists:
It is not, however, to be denied that there are some passages in the new testament which seem to forbid all war: particularly, our Saviour’s own words in his sermon on the mount. I say unto you that ye resist not evil love your enemies, do good to them that hate you, etc. And those of the apostle Paul; Recompence to no man evil for evil. Avenge not your selves. And from such passages some have supposed that Christians are not allowed to defend themselves by force of arms, how violently soever they may be attacked.
Give me leave then, to offer a few remarks to take off the force of this objection.
1. When our Saviour forbids us to resist evil, he seems to have had in view only small injuries, for such are those which he mentions in the following words, as an illustration of the precept; smiting on the cheek, taking away one’s coat, or compelling him to go a mile. And to such injuries it is oftentimes a point of prudence, as well as duty to submit, rather than contend. But it does not follow, that because we are forbidden to resist such slight attacks, we may not defend ourselves when the assault is of a capital kind. But,
2. Supposing our Lord’s words to refer only to small injuries, they ought not to be taken in an absolute sense. Expressions of this nature frequently occur in scripture, which are universally understood with certain restrictions and limitations. For instance; Love not the world, nor the things that are in the world. Lay not un for yourselves treasure on earth. Give to him that asketh thee, and from him that would borrow of thee, turn not thou away. Now, I believe, no body ever supposed, not even the honest Quakers, that these precepts were to be understood so literally, as to forbid all love of the world, and all care to provide the good things of it; or to oblige us “to give to every idle fellow all he may think fit to ask, whether in charity or loan.” And we have as good a right to limit the precept which forbids our resisting evil, by the nature and reason of things, as we have to limit these other indefinite expressions.
3. Defending ourselves by force of arms against injurious attacks, is a quite different thing from rendering evil for evil. The latter implies doing hurt to another, because he has done hurt to us; the former implies doing hurt to another, if he is hurt in the conflict, only because there is no other way of avoiding the mischief he endeavors to do us: the one proceeds from malice and revenge; the other merely from self-love, and a just concern for our own happiness, and argues no ill will against any man.
And therefore it is to be observed,
4. That necessary self-defence, however fatal it may prove to those who unjustly attack us, implies no principle inconsistent with that love to our enemies which Christ enjoins. (Footnotes omitted).4
While these selection are only a small sampling, they, nevertheless, are representative of the sentiments among preachers in the eighteenth century.
Previous: Self-Defense: Constitutional Provisions
* Copyright © 1989, 2007 Erich M. Pratt. Used with permission.
136. Malcolm, “The Right of the People to Keep and Bear Arms: The Common Law Tradition,” Hastings Constitutional Law Quarterly, p. 287.
137. American Bar Association, “Background Report on Firearms Control,” Report of the Subcommittee on the Constitution of the Committee on the Judiciary, p. 28.
138. See Roy Weatherup, “Standing Armies and Armed Citizens: An Historical Analysis of The Second Amendment,” Report of the Subcommittee on the Constitution of the Committee on the Judiciary, p. 169.
139. Malcolm, “The Right of the People to Keep and Bear Arms: The Common Law Tradition,” Hastings Constitutional Law Quarterly, p. 287.
140. National Coalition To Ban Handguns, “You do not have a Constitutional Right to Own a Handgun,” Report of the Subcommittee on the Constitution of the Committee on the Judiciary, p. 30.
141. See John Levin, “The Right To Bear Arms: The Development of the American Experience,” Report of the Subcommittee on the Constitution of the Committee on the Judiciary, pp. 128-129.
142. Schwartz, The Bill of Rights, vol. 5, p. 1042.
143. Dred Scott, 60 U.S. (19 How.) 393 (1857).
144. Commonwealth v. Davis, Mass., 343 N. E. 2d 847.
145. National Coalition To Ban Handguns, “You do not have a Constitutional Right to Own a Handgun,” Report of the Subcommittee on the Constitution of the Committee on the Judiciary, p. 31.
146. Weatherup, “Standing Armies and Armed Citizens: An Historical Analysis of The Second Amendment,” Report of the Subcommittee on the Constitution of the Committee on the Judiciary, p. 169.
147. National Coalition To Ban Handguns, “20 Questions and Answers,” Question No. 5.
148. Militia Act of 1792, printed in Callan, The Military Laws of the United States, p. 65.
149. The Encyclopedia Americana International Edition, vol. 19, s.v. “National Guard.”
150. Dick Act, 32 Stat. 775 (1903).
151. U.S., Congress, House. National Guard Bill, H.R. 5645, 73rd Cong., 1st Sess., 1933, p. 2.
153. 10 United States Code section 311 (1983).
154. The founders believed that self-governing individuals should always be trained in the use of arms and be organized in a militia. They believed, however, that a select militia could not accomplish this goal. For example, Richard Henry Lee said that states should not establish a select militia because it tended to render “this general militia useless and defenceless.” Furthermore, he asserted that a select militia, not much unlike regular troops, will ever produce an inattention to the general militia; and the consequence has ever been, and always must be, that the substantial men, having families and property, will generally be without arms, without knowing the use of them, and defenceless; whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them. [The Federal Farmer [Richard Henry Leel, Letters from the Federal Farmer to the Republican. ed. Bennett, p. 124.3
Many of the founding fathers agreed with Lee that select militias were similar to standing armies. For example, one delegate to the Pennsylvania Convention believed that Congress should not establish “a select militia which will, in fact, be a standing army.” (Merrill Jensen, ed., The Documentary History of the Ratification of the Constitution, 16 vols. (Madison: State Historical Society of Wisconsin, 1976), vol. 2: Ratification of the Constitution by the States: Pennsylvania, p. 509.] Because it was viewed as a standing army, the select militia was considered to be Just as dangerous. In this respect, everything the founders said about standing armies could also be said about select militias. Most important, however, was the concern that a select militia would produce apathy, the nemesis of a vigilant and self-governing individual. Individual effort was very important. For example, James Madison, during the Virginia Convention, praised the militia because it would “be a strong inducement to individual exertion.” (Emphasis added.) Furthermore, it would “exert the whole natural strength of the Union . . . [and.] furnish the people with sure and certain protection, without recurring to this evil [of a standing army].” [Elliot, ed., The Debates in the Several State Conventions, vol. 3, p. 381.3
155. The Federal Farmer [Richard Henry Lee], Letters from the Federal Farmer to the Republican, ed. Bennett, p. 124.
156. Elliot, ed., The Debates in the Several State Conventions, vol. 3, p. 380..
157. The Federal Farmer [Lee], Letters from the Federal Farmer to the Republican, ed. Bennett, p. 124.
158. Wendell Phillips quoted in Dr. Laurence J. Peter, Peter’s Quotation’s (Toronto: Bantam Books, 1977), p. 203.
159. American Civil Liberties Union, “Policy #43,” Report of the Subcommittee on the Constitution of the Committee on the Judiciary, p. 28.
160. Washington, D.C., vividly shows that gun control does not work. The District has had tough gun control laws since 1976, and yet they were ranked as the nation’s murder capital in 1988. The reason? Armed criminals can freely terrorize the D.C. neighborhoods because the citizens have been made defenseless by law. Even with gun control, the criminals still manage to get the illegal guns — after all, a criminal by definition does what is illegal. Criminals can steal guns, make guns or buy them on the black market. Banning guns only takes them away from the law-abiding citizens, not the criminals. And, the disarmed citizens can not always rely on the police: there are only 150,000 police on duty at any one time in the entire country [Larry Pratt, “Gun control – as 150,000 police try to protect 250 million Americans,” The Providence Journal, April 3, 1989]. No wonder the courts have stated that the police do not have the duty to protect individual citizens, only society as a whole.
Despite the D.C. gun ban, Washington had more shooting deaths than any other city in 1988. Where did the criminals get the guns if they were illegal? Critics claim that the criminals merely got them from the neighboring state, Virginia, where the guns are legal. [Scott Ross, Straight Talk, (Virginia Beach: Christian Broadcasting Network), February 27, 1989.] This, they claim, is the reason why the D.C. gun ban is not working. Perhaps the criminals do get their guns in Virginia; even so, this overlooks one point. If the availability of guns in Virginia is the root of D.C.’s problems, then why does Virginia not have the same murder and crime rate as the District? Virginia is awash in guns and yet the crime rate is much, much lower than Washington’s. Why? The reason is that in Virginia, armed citizens can shoot back at the criminals. Guns in the hands of citizens deter crime. The National Institute of Justice (NIJ), which conducted a survey of incarcerate felons, found that about 3/5 of the inmates polled agreed that “a criminal is not going to mess around with a victim he knows is armed with a gun” [U.S. Department of Justice, National Institute of Justice, The Armed Criminal in America: A Survey of Incarcerated Felons, (July 1985), p. 27.] Furthermore, 74% of the inmates agreed that “[o]ne reason burglars avoid houses when people are at home is that they fear being shot during the crime” [Ibid]. Even without these figures, common sense should indicate that criminals would rather meet unarmed victims, not armed ones. Armed victims pose quite a problem for criminals. In this country, about one million people use a gun to defend themselves against criminals every year — or 2740 people a day. [Gary Kleck, “Crime Control Through the Private Use of Armed Force,” Social Problems 35 (February 1988):4]. Furthermore, about 1500 to 2800 criminals are killed every year by gun-wielding civilians in self-defense [Ibid., p. 51. It appears that Washington, D.C. is prohibiting the best form of crime control: an armed citizenry. Even most of the inmates who
were polled by NIJ (57%) agree that “criminals are more worried about meeting an armed victim than they are about running into the police” [U.S. Department of Justice, National Institute of Justice, The Armed Criminal in America: A Survey of Incarcerated Felons, p. 27.] The NIJ states that this response is considerably accurate because,
National surveys conducted periodically since 1959 have routinely found that about half of all US households possess at least one gun, which translates into about 40 million gun owning households. There are, in short, very many more potential “armed victims” to run into than there are police. Consistent with the point, [Gary] Kleck (1983) has reported that in any given year, more criminals are shot to death in “Justifiable homicides” by ordinary civilians than are killed by the police [Ibid].
In conclusion, until the District of Columbia relaxes its gun control laws, Washington may continue to find itself listed as the nation’s murder capital.
161. Levin, “The Right To Bear Arms: The Development of the American Experience,” Report of the Subcommittee on the Constitution of the Committee on the Judiciary, pp. 128-129.
162. See the Editorial, “Veto It, Governor,” The Virginian-Pilot, March 11, 1987.
163. Patton states that,
Switzerland lies landlocked in Western Europe. . . . By modern jet fighter, it is ten minutes from the Warsaw Pact nations of Eastern Europe. Since 1815 Switzerland has remained an inviolate island of peace in the midst of war. Even Adolph Hitler’s Wehrmacht, which conquered all of Europe in the early months of World War II, chose not to attack Switzerland despite the fact that the small country was in the crossroads of Western Europe.
The Swiss have no illusions about their ability to defeat a major military power. They could not have defeated the Nazi army which for a time considered invading Switzerland. They mobilized, however, and made it clear beyond a shadow of a doubt that if the Nazi army invaded, it would be fiercely resisted. . . . In a classic example of dissuasion at work, Hitler’s general staff recommended against an invasion on the grounds that the costs would be disproportionate to the gains. [George S. Patton and Lewis W. Walt, “The Swiss Report,” in The Militia in the 20th Century, ed. Morgan Norval (Falls Church, VA: Gun Owners Foundation, 1985), pp. 153-154, 161.] 164. Ibid., pp. 154, 162-163, 166.
165. Ibid., p. 169.
166. There are 50 million males between the ages 18 and 44. This figure is adapted from the U.S. Bureau of Census, The Statistical Abstract of the U.S.:1986, 106th ed. (Washington, D.C.: U.S. Government Printing Office, 1985), p. 24.
168. There were 788,026 people in the army in 1982. This figure is taken from Russell F. Weigley, History of the United States Army (Bloomington: Indiana University Press, 1984), p. 600.
1. I am indebted to Gary Amos for the framework of the argument that is presented in this appendix. Much of the subject matter covered in this appendix can be found in greater depth in Gary T. Amos, ed. “The Laws of Nature and Of Nature’s God: Christian or Deistic?,” Biblical Principles of Government: America a Case Study, (Virginia Beach: CBN University, 1987).
2. Thomas Jefferson, Writings, (New York: Viking Press, 1984), p. 1501.
3. Donald S. Lutz, “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” The American Political Science Review 78 (March 1984):193.
4. Ibid., p. 192.
5. John Locke, An Essav Concerning The True Original Extent and End of Civil Government (reprint, Boston: Edes and Gill, 1773), p. 72.
7. Ibid. Here, Locke stated that,
Human laws are measures in respect of men whose actions they must direct, howbeit such measures they are as have also their higher rules to be measured by, which rules are two, the law of God, and the law of nature; so that laws human must be made according to the general laws of nature, and without contradiction to any positive law of scripture, otherwise they are ill made. (Emphasis added.)
8. Two of the greatest commentators of the common law, Sir Edward Coke and Sir William Blackstone, wrote much about the laws of nature and the laws of God. See Amos, ed. “The Laws of Nature and Of Nature’s Gad: Christian or Deistic?,” Biblical Principles of Government: America a Case Study, pp. 264-269.
9. Lutz, “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” The American Political Science Review, pp. 193, 196.
10. William Blackstone, Blackstone’s Commentaries, ed. St. George Tucker, 5 vols. (Philadelphia: William Young Birch, and Abraham Small, 1803; reprint ed., South Hackensack, NJ: Augustus M. Kelley, 1969), 1:39, 41.
11. Ibid., 1:41.
12. Ibid., 1:41-42.
14. Lutz, “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” The American Political Science Review, p. 192.
1. Samuel Stillman, A Sermon Preached to the Ancient and Honorable Artillery Company in Boston, New England (Boston: Edes and Gill, 1770), pp. 26-27.
2. Nathanael Robbins, Jerusalem’s Peace Wished (Boston: J. Boyles, 1772), pp. 12, 16.
3. John Lathrop, A Sermon Preached to the Ancient and Honorable Artillery-Company in Boston, New England (Boston: Kneeland and Davis, 1774), pp. 23-24.
4. Simeon Howard, “A Sermon Peached to the Ancient and Honorable Artillery Company in Boston,” in American Political Writing during the Founding Era: 1760-1805, ed. Charles S. Hyneman and Donald S. Lutz, 2 vols. (Indianapolis: Liberty Press, 1983), 1:193-194.