From: bb063@cleveland.Freenet.Edu (Christopher J. Crobaugh)
Subject: New Kates piece in Word Perf
Organization: Case Western Reserve University, Cleveland, Ohio, (USA)
Date: Thu, 30 Jul 92 11:17:46 GMT


I have had a couple requests for Don Kates new piece "The Second 
Amendment and the Ideology of Self Defense" in Word Perfect (the
word processor he writes in). So, here it is in WP 5.1.
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HThe Lorain County Firearms Defense Assoc. 3299977
              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


                   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
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
Y
     In the 1960s this individual right view was challenged by
scholars who argued that the second amendment guarantee extends
states' right view attained predominance, and was endorsed by the
right view as inconsistent with the text and with new research
     Sanford Levinson speculates that the indifference of

     a mixture of sheer opposition to the idea of private ownership 
But Levinson and others who reluctantly embrace the individual 3on the issue of self-protection, straight forwardly denying the
     The purpose of this article is to explore the numerous and

ntellectual progenitors, being prepared for self-defense was a

     The underpinnings of the classical liberal belief in an armed

f fact,6
     To natural law philosophers, self-defense was "the primary law
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
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
:given to men, that none might be Slaves, but such as know not how
{subsist by them be dissolved, and all innocent persons be exposed
to the violence of the most wicked, if men might not justly defend

     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.
"Horrid mischief would ensue were [the law-abiding] deprived of the
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
     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

     Likewise, Montesquieu condemned laws against firearms as
     The notion that the truly civilized person eschews self-
     This failure to distinguish between the value of self-e ]
     Thus a crucial point for understanding the second amendment is

s officials and

     These notions of community benefit from individuals armed and

     Blackstone placed the right to arms among the "absolute rights
     But Blackstone's analysis also demonstrates a final

     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
     right of having and using arms for self-preservation
?
     To readers with modern sensibilities this inevitably raises

     To answer these questions is to come to a fuller understanding
     The Anglo-American legal distinction between free/armed and

Y 
     The very survival of republican institutions depended upon

took from its criminological premises was that of deterrence: if

     Commitment, duty, and responsibility are also viewed as

     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
e
Thus, when Machiavelli said that "to be disarmed is to be
     It was in this tradition of civic virtue through armament that

     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

     Of course the basis for the Founders' belief in the possession

ent because of
     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
$
     This faith in the possession of arms buoyed up Locke and his
     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
d
Whatever the merits of this deterrence theory, in other respects

     [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
     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

     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
6     The Founders' reasons for guaranteeing a right to arms for

     Probably the most obvious political ramification of the right

ffect was not
Those who had opposed the King were left helpless against either
     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 overstand 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
Comparison might be made to South Africa where blacks, though an
overwhelming majority, are subject to one of the world's most

     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
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
Iarms, 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
     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,

     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

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 andgpeople'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]
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
`	Y
     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
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 thenewspapers 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

     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
"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 andhim of all his property and all his liberties. In America from the
immediate pre-Revolutionary period through the debates over the
     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
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.
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
including 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
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
^
     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 downformal 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).

     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
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

-- 
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