From: bb063@cleveland.Freenet.Edu (Christopher J. Crobaugh)
Subject: New Don Kates Piece
Organization: Case Western Reserve University, Cleveland, Ohio, (USA)
Date: Tue, 28 Jul 92 11:55:01 GMT


aned up what I had (some hits) that Larry Cipriani had put
on the board; many thanks to him for going to all the work to
type is up as an ASCII file. I happen to know Kates, and know
that he uses WordPerfect. I also have this file IN the Word
Perfect format if anyone wants it that way. IT makes the footnotes
print better, is all.
Anyway, this should be required reading for anyone in the debate 
on gun guns and gun control, no matter which side you're on.
Read and enjoy, and thanks again, Larry.

              THE SECOND AMENDMENT AND THE IDEOLOGY
                       OF SELF-PROTECTION



                        DON B. KATES, JR.




                         Reprinted from
                    CONSTITUTIONAL COMMENTARY
                   Vol. 9. No. 1. Winter 1992
               c 1992 by Constitutional Commentary


                 THE SECOND AMENDMENT AND THE
                   IDEOLOGY OF SELF-PROTECTION
                     Don B. Kates, Jr.*

     From the enactment of the Bill of Rights through most of the
twentieth century, the second amendment seems to have been
understood to guarantee to every law-abiding responsible adult the
right to possess most ordinary firearms. Until the mid-twentieth
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," or "their own arms."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
confines their freedom of choice to militia-type weapons, i.e.,
high quality handguns and rifles, but not "gangster weapons" such
as sawed-off shotguns, switchblade knives and (arguably) "Saturday
Night Specials."2

     In the 1960s this individual right view was challenged by
scholars who argued that the second amendment guarantee extends
only to the states' right to arm formal military units.3  This
states' right view attained predominance, and was endorsed by the
ABA, the ACLU and such texts as Lawrence Tribe's American
Constitutional Law. During the 1980s, however, a large
literature on the amend-
-------------------------
     *  Attorney, Novato, California.
     1. In addition to the cases and earlier commentaries quoted
and discussed in Don B. Kates, _Handgun _Prohibition _and _the
_Original _Meaning _of _the _Second _Amendment_, 82 Mich. L. Rev.
204, 224, 241-51 (1983), see John N. Pomeroy, _An _Introduction _to
_the _Constitutional _Law _of _the _United _States_ 152-3 (Hurd and
Houghton, 1868); Hermann E. von Holst, 5 _The _Constitutional _and
_Political _History _of _the _United _States_ 307 (John J. Lalor,
trans., Callaghan & Co., 1885); Henry C. Black, _Handbook _of
_American _Constitutional _Law_ 543 (West, 3d ed. 19 10); James
Schouler, _Constitutional _Studies: _State _and _Federal_ (Dodd,
Mead, & Co 1897); John Randolph Tucker, 2 _The _Constitution _of
_The _United _States_ 2 (Henry Tucker, ed., Callaghan & Co., 1899);
Albert H. Putney, _United _States _Constitutional _History _and
_Law_ 363 (Illinois Book Exch., 1908); Comment, _Is _the _Pistol
_Responsible _for _Crime?_, 1 J. of Crim. L., Crimin. & Pol. Sci.
793, 794 (1911). 
     2. _United _States _v. _Miller_, 307 U.S. 174 (1939).
     3. See, e.g., John Levin, _The _Right _to _Bear _Arms: _The
_Development _of _the _American _Experience_, 48 Chi-Kent L. Rev.
148 (1971); Roy G. Weatherup, _Standing _Armies _and _Armed
_Citizens: _An _Historical _Analysis _of _the _Second _Amendment_,
2 Hast. Const. L.Q. 961 (1975).

                               
                 CONSTITUTIONAL COMMENTARY         [Vol. 9:87

ment appeared, much of it rejecting the states' right view as
inconsistent with the text and with new research findings on the
legislative history, the attitudes of the authors, the meaning of
the right to bear 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 (rather than to
the states).5

     Sanford Levinson speculates that the indifference of
academics, and the legal profession generally, to the second
amendment reflects

     a mixture of sheer opposition to the idea of private ownership
     of guns and the perhaps subconscious fear that altogether
     plausible, perhaps even "winning," interpretations of the
     Second Amendment would present real hurdles to those of us
     supporting prohibitory regulation.6

But Levinson and others who reluctantly embrace the individual 
right view are not always sympathetic to gun ownership, and
certainly not 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 right position. In contrast,
proponents of the state's
-------------------------
     4. See, e.g. Robert E. Shalhope, _The _Ideological _Origins _of_the
_Second _Amendment_  69 J. Am. Hist. 599 (1982); Kates, 82
Mich. L. Rev. at 230-35 (cited in note 1); Joyce Lee Malcolm, _The
_Right _of _the _People _to _Keep _and _Bear _Arms: _The _Common
_Law _Tradition_, 10 Hast. Const. L.Q. 285 (1983); Stephen P.
Halbrook, _"That _Every _Man _Be _Armed". _The _Evolution _of _a
_Constitutional _Right_  (U. N.M. Press, 1984); Sanford Levinson,
_The _Embarrassing _Second _Amendment_, 99 Yale L.J. 637 (1989);
Don B. Kates, _Minimalist _Interpretation
_of _the _Second _Amendment ("_Minimalist _Interpretation_") in
Eugene W. Hickok, ed., _The _Bill _of _Rights: _Original
_Understanding _and _Current _Meaning_ at 130 (U. Pr. of Va., 1991)
("_Bill _of _Rights_"); Akhil Reed Amar, _The _Bill _of _Rights _as
_a _Constitution_, 100 Yale L.J. 11 31, 1162-73 (1991); Robert J.
Cottrol & Raymond T. Diamond, _The _Second _Amendment.- _Towards
_an _Afro-Americanist _Reconsideration_, 80 Georgetown L.J. 309
(1991).
     5. _United _States _v _Verdugo-Urquidez_, 110 S.Ct. 1056
(1990). 
     6. Levinson, 99 Yale L.J. at 642 (cited in note 4).
     7. For 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, see Stephen P. Halbrook, _What _the _Framers
_Intended: _A _Linguistic _Analysis _of _the _Right _to _"Bear
_Arms_", 49 Law & Contemp. Probs. 151 (Winter 1986), and Don B.
Kates, _The _Second _Amendment: _A _Dialogue_, 49 Law & Contemp.
Probs. 143 (Winter 1986).


      right view do focus on the issue of self-protection, straight-
forwardly denying the existence of historical evidence that self-
protection 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. Indeed, self-defense is at
the core of the second amendment and was an element in the
Founders' political thought generally. At the same time, it is
important to recognize that the Founders' view of self-protection
was not only stronger but also more inclusive than the concept
described 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.

     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 so that the refusal to do
so reviles God's gift. A refusal to engage in self-defense is a
Judeo-Christian form of hubris.  Indicative of the intellectual
gulf between that era and our own is that when Montesquieu asked,
"Who does not see that self-defence is a duty superior to every
precept?"" he was posing the question rhetorically rather than
meaningfully.
-------------------------
     8. See, e.g., George D. Newton & Franklin E. Zimring,
_Firearms _and _Violence _in _American _Life_ 259 (Nat. Com'n on
Causes & Prevention of Violence, 1970) (characterizing the second
amendment "as a scheme dealing with military service, not
individual defense.")
     9. Russell F. Weighley, _History _of _the _United _States
_Army_ 19 (Macmillan Co., 1967). See note 45 for discussion of the
billeting of criminous troops on the king's enemies as a punishment
and means of surveillance. Throughout the eighteenth 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 Pauline Maier, From _Resistance _to _Revolution:
_Colonial _Radicals _and _the _Development _of _American
_Opposition _to _Britain_. 1765-1776 (Alfred A. Knopf. 1972)
_("From _Resistance _to _Revolution")._
     10. William Blackstone, 3 _Commentaries_ *4; see generally
Thomas Hobbes, _Leviathan_ ch. XIII (1651, rep. George Routledge &
Sons, 1894).
     11. Montesquieu, _The _Spirit _of _the _Laws_, in Mortimer
Adler, ed. 35 _Great _Books _of _the_ 

     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, seventeenth and
eighteenth 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.  Slavers, robbers
and other outlaws who would deprive honest citizens of their rights
may be resisted even to the death because their attempted
usurpation places them in a "state of war" against honest men.
Likewise, when a King and/or his officials attempt to divest a
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.13  Similarly, Algernon Sidney declared: "Swords were
given to men, that none might be Slaves, but such as know not how
to use them."14  "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. . . ." 15

     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."16 
Cesare Beccaria assailed arms bans as a paradigm of simplistic
legislation reflecting "False Ideas of Utility."  His discussion
deserves quotation in full, in part because Thomas Jefferson
laboriously copied it in long-hand into his personal compilation of
great quotations:
-------------------------
_Western _World_ 217 (Thomas Nugent, tr., Encyclopedia Britannica,
2d ed. 1990) ("_Spirit _of _the _Laws_").
     12. See, e.g. J.J. Burlamqui, _The _Principles _of _Natural
_and _Politic _Law_ 112-13, 119, 121 (Nugent, tr., Cambridge U.
Press, 5th ed. 1907); de Vattel. _The _Law _of _Nations.-
_Principles _of _the _Law _of _Nature_ 22 (Joseph Chitty, tr., T.
& J.W. Johnson, 1854).
     13. John Locke, _An _Essay _Concerning _the _True _Original,
_Extent _and _End _of _Civil _Government _(Second _Treatise _of
_Government)_ (1694), in Thomas I. Cook, ed., _Two _Treatise _of
_Government_ 119, 129-30 (Haffner Pub., 1947).
     14. Algernon Sidney, _Discourses _Concerning _Government_ 270
(1698). 
     15. Id. at 266-67.
     16. Moncure Conway, ed., 1 _Writings _of _Thomas _Paine_ 56
(Putnam, 1894) (emphasis in original) _("Writings")._


     False is the idea of utility that sacrifices a thousand real
     advantages for one imaginary or trifling inconvenience; that
     would take fire from men because it burns, and water because
     one may drown in it; that has no remedy for evils, except
     destruction. The laws that forbid the carrying of arms are
     laws of such a nature. They disarm those only who are neither
     inclined nor determined to commit crimes. Can it be supposed
     that those who have the courage to violate the most sacred
     laws of humanity, the most important of the code, will respect
     the less important and arbitrary ones, which can be violated
     with ease and impunity, and which, if strictly obeyed, would
     put an end to personal liberty -- so dear to men, so dear to
     the enlightened legislator -- and subject innocent persons to
     all the vexations that the guilty alone ought to suffer? Such
     laws make things worse for the assaulted and better for the
     assailants; they serve rather to encourage than to prevent
     homicides, for an unarmed man may be attacked with greater
     confidence than an armed man. They ought to be designated as
     laws not preventive but fearful of crimes, produced by the
     tumultuous impression of a few isolated facts, and not by
     thoughtful consideration of the inconveniences and advantages
     of a universal decree.17

     Likewise, Montesquieu condemned laws against firearms as
infringing the natural law of self defense.18  As inheritors of
these ideas, the Founders believed that the right to arms was a
necessary ingredient of the moral duty of self-defense. The ideas
underlying the second amendment are further 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 seen (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,
labelling those who own firearms for family defense as "anti-
citizens, " and "traitors, enemies of their own patria"
-------------------------
     17. Ceasare Beccaria, _An _Essay _on _Crimes _and
_Punishments_ 87-8 (Henry Paolucci, tr., Bobbs-Merrill, 1963).
     18. Montesquieu, _Spirit _of _the _Laws_ at 224-25 (cited in
note 11).


who arm "against their own neighbors,"19  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 and to "anarchy, not order
under law -- a jungle where each relies on himself for survival."20

     The notion that the truly civilized person eschews self-
defense, relying on the police instead, or that private self-
protection deserves the public interest, would never have occurred
to the Founders since there were no police in eighteenth century
America and England.21  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.  This duty included both individual acts and joining with
his fellows in hunting criminals down when the hue and cry went up,
as well as the more formal posse and militia patrol duties, under
the control of justices of the peace or sheriffs.22  In this
milieu, individuals who thwarted a crime against themselves or
their families were seen as serving the community as well.23

     This failure to distinguish between the value of self-
protection to individuals and to the community helps account for
what modern readers may deem a remarkable myopia in seventeenth to
nineteenth century discourse on crime, self-protection, and
community interest. Without apparent consciousness of any
difference, that discourse addressed issues of community defense as
if it were only individual self-protection writ large. Thus,
Montesquieu confidently asserted that "[t]he life of governments is
like that of man. The latter has a right to kill in case of natural
defence: the former have a right to wage war for their own
preservation."24  Likewise, Thomas Paine cited the 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
-------------------------
     19. Quoted in Don B. Kates, _The _Value _of _Civilian _Handgun
_Possession _as _a _Deterrent _to _Crime _or _a _Defense _Against
_Crime,_ 18 Am. J. Crim. L. 113, 119 (1991).
     20. _Guns _and _the _Civilizing _Process_, Washington Post A
16, col. 1 (Sept. 26, 1972); Ramsay Clark, _Crime _in _America_ 107
(Simon & Schuster, 1970).
     21. See Kates, 82 Mich. L. Rev. at 214-16 (cited in note 1);
Frank Mom, _Firearms _use _and _Police.- _A _Historic _Evolution
_in _American _Values _("Firearms _Use"),_ in Don B. Kates, ed.,
_Firearms _and _Violence_ 489 (Ballinger, 1984).
     22. Kates, 82 Mich. L. Rev. at 214-16 (cited in note 1);
Malcolm, 10 Hast. Const. L.Q. at 290-92 (cited in note 4).
     23. See generally Kates, 82 Mich. L. Rev. at 214-16 (cited in
note 1); Morn. _Firearms _Use,_ in Kates, ed., _Firearms _and
_Violence_ at 489 (cited in note 21).
     24. Montesquieu, _Spirit _of _the _Laws_ at 61 (cited in note
11).


"the invader and plunderer"; for, if deprived of arms, "the weak
will become a prey to the strong."25  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 individual right of self-defense. Moreover, arms were deemed
to protect against every species of criminal usurpation, including
"political crime," a phrase which the Founders 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 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 therefore remained the same, as
did the community benefit.

     These notions of community benefit from individuals armed and
ready to exercise their natural right of self-defense come together
in the thought of Sir William Blackstone. Significantly, the way in
which he described the right to arms 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.

     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. He
describes the right to bear arms 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"26 -- the
"natural right of resistance and self-preservation, when the
sanctions of society and laws are found insufficient to restrain
the violence of oppression."27

     But Blackstone's analysis also demonstrates a final
distinction between our world view and that of the Founders. For
Blackstone saw the right to personal arms for personal self-defense
as a _political_
-------------------------
     25. Conway, ed., 1 _Writings_ at 56 (cited in note 16). 
     26. William Blackstone, 3 _Commentaries_ *4. 
     27. William Blackstone, 1 _Commentaries_ *144.


right of fundamental importance. His discussion of the "absolute
rights of individuals" ends with the following:

     In these several rights consist the rights, or, as they are
     frequently termed, the liberties of Englishmen.... So long as
     these remain inviolate, the subject is perfectly free; for
     every species of compulsive tyranny and oppression must act in
     opposition to one or [an]other of these rights, having no
     other object upon which it can possible be employed.... And,
     lastly, to vindicate these rights, when actually violated or
     attacked, the subjects of England are entitled, in the first
     place, to the regular and free course of justice in the courts
     of law; next, to the right of petitioning the King and
     parliament for redress of grievances; and, _lastly, _to _the
     _right _of _having _and _using _arms _for _self-preservation
     _and _defense.28_

     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?

     To answer these questions is to come to a fuller understanding
of the moral and symbolic significance of the right to bear arms in
the classical world view. 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
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."29  Anglo-Saxon law forbade
anyone to disarm a free man and Henry I's laws applied this even to
the man's own lord.30  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/armed and
unfree/disarmed flowed naturally into the classical republican view
that the survival of free and popular government required citizens
-------------------------
     28. Id. (emphasis added).
     29. A. V. B. Norman, _The _Medieval _Soldier_ 73 (Thomas Y.
Crowell Co.. 1971)
     30. _The _Assize _of _Arms_ (1181), reprinted in David C.
Douglas & George W. Greenaway, eds., 2 _English _Historical
_Documents_ at 416 (Eyre & Spottiswoode, 1953).


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 republican philosophy derived the idea
that arms possession and property ownership were the keys to civic
virtue.  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.31

     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.

     Commitment, duty, and responsibility are also viewed as
positive rights because to the virtuous citizen the carrying out of
responsibilities to family and duties to country are a right. The
right of arms is one of the first to be taken away by tyrants, not
only for the physical security despotism gains in monopolizing
armed power in the hands of the state, but also for its moral
effects. The tyrant disarms his citizens in order to degrade them;
he knows that being unarmed

     palsies the hand and brutalizes the mind: an habitual disuse
     of physical forces totally destroys the moral; and men lose at
     once the power of protecting themselves, and of discerning the
     cause of their oppression.32

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 fifteen year old nephew:
-------------------------
     31. Kates, 82 Mich. L. Rev. at 230-2 (cited in note 1). 
     32. Joel 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, _Part _I_ 45 (1792, reprinted by Cornell U. Pr., 1956)
_("Advice _to _the _Privileged")._


     A strong body makes the mind strong. As to the species of
     exercises, I advise the gun. While this gives a moderate
     exercise to the body, it gives boldness, enterprize and
     independence to the mind. Games played with the ball and
     others of that nature, are too violent for the body and stamp
     no character on the mind. Let your gun therefore be the
     constant companion of your walks.33

     Of course the basis for the Founders' belief in the possession
of arms was 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, impact of widespread
arms possession.  They believed 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."34   Arming the people is,
according to Locke's followers Trenchard and Moyle,

     the surest way to preserve [their liberties] both at home and
     abroad, the People being secured thereby as well against the
     Domestick Affronts of any of their own [fellow] Citizens, as
     against the Foreign Invasions of ambitious and unruly
     Neighbours.35

     This faith in the possession 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 rise _en _masse_ to take their rights back into their
bloody hands regardless of casualties.36   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 plun-
-------------------------
     33. Thomas Jefferson to Peter Carr, August 19, 1785, in Julian
P. Boyd, ed., 8 _The _Papers _of _Thomas _Jefferson_ 405, 407
(Princeton U. Press, 1953).
     34. Federalist 46 (Madison), in _The _Federalist _Papers_ at
294, 299 (Arlington House, 1966).
     35. John Trenchard & Walter 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 (1697) _("An _Argument")._
     36. Kates, _Minimalist _Interpretation,_in Hickok, _Bill _of
_Rights_ at 132 (cited in note 4).

derer in awe and preserve order in the world as well as
property."37  To avoid domestic tyranny, wrote Trenchard and Moyle,
the people must be armed to

     stand upon [their] own Defence; which if [they] are enabled to
     do, [they] shall never be put upon it, but [their] Swords may
     grow rusty in [their] hands; for that Nation is surest to live
     in Peace, that is most capable of making War; and a Man that
     hath a Sword by his side, shall have least occasion to make
     use of it.38

Whatever the merits of this deterrence theory, in other respects
the Founders also carried their belief in the right to arms to
absurdly utopian extremes. Writers like Timothy Dwight and Joel
Barlow airily dismissed the dangers inherent in widespread
possession of arms:

     [T]heir conscious dignity, as citizens enjoying equal rights,
     [precludes armed citizens having any desire] to invade the
     rights of others. The danger (where there is any) from armed
     citizens, is only to the _government,_ not to the _society;_
     and as long as they have nothing to revenge in the government
     (which they cannot have while it is in their own hands) there
     are many advantages in their being accustomed to the use of
     arms, and no possible disadvantage.39

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 eighteenth century England:

     Dogs could not be used in the streets in the manner many Jews
     were treated. One circumstance among others put an end to the
     ill-usage of the Jews.... About the year 1787 Daniel Mendoza,
     a Jew, became a celebrated boxer and set up a school to teach
     the art of boxing as a science, the art soon spread among the
     young Jews and they became generally expert at it. The
     consequence was in a very few years seen and felt too. It was
     no longer safe to insult a Jew unless he was an old man and
     alone.... But even if the Jews were unable to defend
     themselves, the few who would now be disposed to insult them
     merely because they are Jews, would be in danger of
     chastisement from the passers-by and of punishment from the
     police.40
-------------------------
     37. Conway, ed., 1 _Writings_ at 56 (cited in note 16).
     38. Trenchard & Moyle, _An _Argument_ at 12 (cited in note
35).
     39. Barlow, _Advice _to _the _Privileged_ at 17 (cited in note
32). See also Timothy Dwight, 1 _Travels _in _New _England _and
_New _York_ xiv (Charles Wood, London ed. 1823).
     40. Francis Place, _Improvement _of _the _Working _Classes_
(1834), as quoted in R.K. Webb, _Modern _England: _From _the
_Eighteenth _Century _to _the _Present_ 115 n. 14 (Dodd, Mead,
1970) _("Modern _England")._


     The Founders' reasons for guaranteeing a right to arms for
individual self-protection were not limited to abstract moral
precepts or even a utopian belief in the potential efficacy of an
armed populace against tyranny and mayhem. The second amendment
reflects concrete historical circumstances 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 nineteenth
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 seventeenth 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 _terrorem_ 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.

     Many 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 1950s and 1960s.41
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.42

     The disarming 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
-------------------------
     41. John R. Salter and Don B. Kates, _The _Necessity _of
_Access _to _Firearms _by _Dissenters _Whom _Government _is
_Unwilling _or _Unable _to _Protect_, in Don B. Kates, ed.,
_Restricting _Handguns: _The _Liberal _Skeptics _Speak _Out_ 185
(North River Press, 1979) (_"Restricting _Handguns"_); Cottrol &
Diamond, 80 Geo. L.J. at 355 (cited in note 4).
     42. See Raymond G. Kessler, _Gun _Control _and _Political
_Power_, 5 Law & Policy Q.381, 399-391 (1983).
is the Kristallnacht, 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.43  It is unlikely 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 one reason the Jews
persevered and triumphed in the Middle East -- where they were
during the 1930s a far smaller minority than in Europe, and subject
to similar violence -- was because they took steps to obtain and
use arms.44

     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 to control him. Generally speaking, there
was no difference in character among 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
eighteenth century Englishmen and Americans would have been the
persecution that drove the Huguenots to their shores by the
thousands. As a modern historian has noted, among the numerous
tribulations visited in the 1690s upon the Huguenots in order to
compel them to convert,

     the most atrocious -- and effective -- were the _dragonnades,_
     or billeting of dragoons on Huguenot families with
     encouragement to behave as viciously as they wished.
     Notoriously rough and undisciplined, the enlisted troops of
     the dragoons spread carnage, beating and robbing the
     householders, raping the women, smashing and wrecking and
     leaving filth ... 45
-------------------------
     43. Kates, _Restricting _Handguns_ at 185 (quoting official
commentary on the German Firearms Act of 1937 which explicitly
excluded gun permit applications by Jews) (cited in note 41). 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.")
     44. Personal communication with Abraham N. Tennenbaum, Israeli
attorney and police lieutenant.
     45. Barbara W. Tuchman, _The _March _of _Folly_ 21 (Alfred A.
Knopf, 1984).


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 eighteenth 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.46  As in England itself, the
people's unwillingness to enforce smuggling laws 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 exert,"47  during the 1760s and early 1770s
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, all in a tumultuous process in which even those things not
seized were often destroyed along with the surrounding
furnishings.48

     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. 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.
Seven years of protest had resulted in the colonies feeling the
yoke of ever-increased military occupation and 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.

     So leading figures in Boston, and the town officially, advised
the citizens that their only resource was to arm themselves for the
-------------------------
     46. This description is taken from _A _Journal _of _the
_Times_ (March 17, 1769), a Boston publication expressing the Whig
point of view that was reprinted throughout he colonies and in
England, excerpted in Oliver Dickerson, ed., _Boston _Under
_Military _Rule_ 79 (Chapman & Grimes, 1936).
     47. Lord Chesterfield, quoted in Tuchman, _March _of _Folly_
at 158 (cited in note 45).
     48. For a detailed discussion of the events detailed in this
and the following paragraphs, see Stephen P. 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).


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 both the
political nature of the right and its relationship to the right of
self-defense:

     It is a natural right which the people have reserved to them-
     selves, confirmed by the [English] Bill of Rights, to keep
     arms for their own defence; and as Mr. Blackstone observes, it
     is to be made use of when the sanctions of society and law are
     found insufficient to restrain the violence of oppression.49

     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 to 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
incidents that propelled the colonies into revolution.

     The desirability of citizens arming themselves against illegal
search may seem doubtful 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 eighteenth 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" said George Mason later, "was the best
and effectual way to enslave them."50  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 Founders, 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, by robbing
him of all his property and all his liberties. In America from the
immediate pre-Revolutionary period through
-------------------------
     49. From _A _Journal _of _the _Times_ (March 17, 1769),
excerpted in Dickerson, ed., _Boston _Under _Military _Rule_ at 79
(cited in note 46).
     50. Jonathan Elliott, 3 _Debates _in _the _Several _State
_Conventions_ 380 (J.B. Lippincott, 2d ed. 1836).

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.51

     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 Founders lived among, and upon the labor of,
a people many of whom were being held under duress. At least some
of the Founders 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.

     This background suggests why Blackstone saw political
overtones in the right to arms, coupling his discussion of it to
rights that are plainly political in nature. It helps 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.52  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.

     The self-defense origins of the second amendment are thus many
and complex. Natural law philosophers saw self-defense as the
primary 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
in-
-------------------------
     51. See Maier, _From _Resistance _to _Revolution_ (cited in
note 9).
     52. See Kates, 82 Mich. L. Rev. at 205 (cited in note 1), and
cases cited therein at note 5.

cluding the Founders. They saw killings, maimings, assaults,
despoilation and raping as equally criminal whether the perpetra-
tors were apolitical outlaws or "lewd Villains" serving a "wicked
Magistrate." Viewing despotic impositions and terrorization of the
people as a species of _criminal_ usurpation, the Founders saw the
rights of individual arms possession and resistance, and of
collective revolution where necessary, as aspects of the right to
self-defense. At the same time the Lockeans believed widespread
popular possession of arms to be a powerful deterrent to political
and apolitical crime alike.

     No less important in shaping the amendment was the Anglo-
American legal tradition (as the Founders understood it) which was
influential both in its own right and as support for the view of
the right to arms which the Founders took from classical 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.53  Notwithstanding the evident need for
municipal police, it would be another forty-fifty 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 nineteenth century England was
the policy forbidding police to have arms while on duty.)54

     In the absence of a police, the American legal tradition was
for responsible, law abiding citizens to be armed and to 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 preexisted 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).
-------------------------
     53. See Tuchman, _March _of _Folly_ at 148 (cited in note 44);
see also Webb, _Modern _England_ at 184 (cited in note 40).
     54. The British tradition of unarmed policing persists to this
day because crime, particularly violent crime, fell rapidly
throughout nineteenth century England; in contrast, as
American violence increased police seized the right to be armed by
refusing to patrol unarmed. Colin Greenwood, _Firearms _Control: _A
_Study _of _Armed _Crime _and _Firearms _Control _in _England _and
_Wales_, ch. 1 (Routledge & Kegan Paul, 197 1); Morn, _Firearms
_Use_, in Kates, _Firearms _and _Violence_ at 496-500 (cited in
note 21).
     Nor should it be thought that the Founders would necessarily
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 eighteenth century America or Stuart
England and Bourbon France. Rather those examples confirmed both
the criminologically based worldview of classical philosophy and
its foundation in the even more ancient dictum that just and
popular governments rest upon widespread popular possession of
arms. Basic to tyrants is the "habit of distrusting the masses, and
the policy, consequent upon it, of depriving them of arms."55







-------------------------
     55. Ernest Barker, ed. & tr., _The _Politics _of _Aristotle_
237 (Oxford U. Press, 1972).



-- 
bb063@Cleveland.Freenet.Edu  Chris Crobaugh - (216) 327-6655 (V)
"Those who would sacrifice essential liberties for a little 
temporary safety deserve neither liberty nor safety." B. Franklin