The Right to Keep and Bear Arms
The Legacy of Republicanism vs. Absolutism
(c) 1993 - 2003
Gary A. Shade
Introduction
Much of today’s debate regarding the individual’s right to keep and bear arms, has been
shrouded by misapplying various interpretations of the militia clause of the second
amendment to the US Constitution. The second amendment states:
"A well-regulated militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed."
The proponents of gun control insist that the second amendment only apply to an
organized militia such as the National Guard. However they overlook the fact the
National Guard in times of national crises, comes under direct control of the Federal
Government. The Guard works in concert with the regular Army in carrying out the
Federal military mission. This was finally put to rest when in the 1980s, then Minnesota
Governor Rudy Perpich sued the Federal Government over control of the National Guard.
The State of Minnesota lost the case and the Federal Government won.
The act of federalizing the National Guard is due to the law passed by Congress on
January 21, 1903. It provides that the "..organized militia known as the National Guard of
the state, Territory or District of Columbia.. " is under the command of the Nation’s Chief
Executive. Furthermore, all arms are controlled by and owned by the Federal
Government.
If indeed the National Guard can be placed under Federal Control, then who is the
unorganized militia? This question is rooted in historical precedence with ample evidence
provided by the ancients, and contemporary thinkers that we are. That is to say, all ablebodied
men (and now perhaps women) between the ages of 17 and 45 who are capable of
acting in defense of the country. This definition also exits in the current United States
Code [10 U.S.C. 311 (a)] which states:
"The militia of the United States consists of all able-bodied males at least
17 years of age, and, except as provided in section 313 of title 32, under
45 years of age . . . "
The US Code further divides the militia into two classes: The organized, and the
unorganized militia. The organized militia is viewed in the USC as the National Guard
and Naval Militia, and the unorganized militia that consists of ".. all members of the
militia who are not members of the National Guard or the Naval Militia." [10 U.S.C. 311
(c)]
Advocates of gun control not only ignore the definition of militia as that of the citizen
soldier, they also ignore that the final clause that uses the verbiage of the "..right of the
people..", is the same application of the "the people as used in the First, Fourth, Ninth,
and Tenth Amendments.
The application of the First Amendment applies to an individual’s right to free speech.
The Fourth Amendment secures the individual against unreasonable searches and
seizures of property by the government. If the Second Amendment were to be construed
as a collective right, then it logically follows that only corporations or collective bodies
(such as political parties) would have a right to free speech, and would be free from
unreasonable search and seizures.
Yet these Amendments have been interpreted to be individual rights due to the clause that
refers to ’the people’. The people refer to the individuals that make up the general
populace.
It is precisely this definition that divides today’s debate on gun control. The idea of the
citizen soldier is older than ancient Rome. The unorganized militia provides for a citizen
soldier to be the guardian of liberty and freedom.
Where did this well established but often overlooked view of the militia originate? As
will be seen, its history can be found in the most early discussions on politics: From
Rome, to Greece, to Virginia.
The most contemporary work on this subject, is:
That Every Man Be Armed - The Evolution of a Constitutional Right
by Attorney Stephen P. Halbrook. Halbrook’s work is the most thorough and documented
work on the Second Amendment this century. This paper relies heavily upon the work of
Mr. Halbrook, and provides the necessary and proper credits in the bibliography.
The Ancient Greeks and Romans
In Plato’s Republic, Plato discusses how, through force, an unjust state could win favor.
Oligarchy forms of government occur when privilege is fixed by statute. (Republic 139-
140.) Plato envisions a move to a democracy, but retains much of the social inequality
associated with absolutism. The need for a strong leader is anticipated who would revert
to absolute authority and halt the march to democracy. Plato concludes:
"Then to be sure, the people will learn what sort of a creature it has bred
and nursed to greatness in its bosom, until now the child is too strong for
the parent to drive out. Do you mean that the despot will dare to lay hands
on this father of his and beat him if he resists? Yes, when once he has
disarmed him." (Republic 295)
The idea of a philosopher king that Plato contemplates, assumes the best in human nature
and does not speculate on the more contemporary historical fragility of such assumptions.
Even Catherine the Great of Russia, an enlightened despot, later reversed herself from
enlightenment to absolutism
promoter of Voltaire and others, Catherine later burned his books and banned them from
Russia.
(The Western Heritage, 653.) Whereas once a shrewd(The Western Heritage, 679.) Aristotle argued that citizens must be protected from tyranny, and that tyranny was
achieved through the King’s use of a standing army.
Aristotle spoke of the King’s use of the standing army to wage war, and to heavily tax the
populace. These efforts would preoccupy the general populace to prevent an overthrow
the oligarchy.
(Politics, 82) Both Plato and(That Every Man be Armed, 12) Rome’s Cicero also put forth the notion that an individual also has the right to bear arms
in self defense. When defending Titus Annius Milo in 53 B.C. for the murder of Publius
Claudius Pulcher, he stated:
There are, many occasions on which homicide is justifiable. In particular, when violence
is needed to repel violence, such an act is not merely justified but unavoidable"
Political Speeches, 78-81)
(Selected Here the natural law of self defense is eloquently stated by Cicero. Cicero states:
".. there exists a law, not written down anywhere but inborn in our hearts;
a law which comes to us not by training or reading but by natural
intuition."
He further discusses the moral righteousness of using ".. every method to protect
ourselves." Not only is Cicero speaking of the individual’s right to bear arms in self
defense from another individual, but also to defend one’s person and property from
violence by the state.
Rome stood as a free republic until Gaius Marius abolished the citizen soldier in 49 B.C.
(That Every Man Be Armed, 18)
Caesar was ruthless in his conquests. He would not accept surrender from his enemies
until all the arms of the conquered town had been collected. He would mutilate those who
bore arms against him by cutting off their hands.
knew that an armed populace was more difficult to conquer.
Caesar’s reign marked the beginning of the Empire.(That Every Man Be Armed, 18) Caesar Machiavelli
Machiavelli was also a believer in the citizen soldier or citizen militia. In his work
Discourses on the First Ten Books of Titus Livy, he praises Rome before the reign of
Caesar. Machiavelli was also against large standing armies as shown in the following
passage.
"..in attacking a foreign country, [the Romans] never sent out armies
greater than fifty thousand men; but for home defense against the Gauls
after the first Punic war eighteen hundred thousand....In conclusion,
therefore, I say again that a ruler who has his people well armed and
equipped for war, should always wait at home to wage war.."
107)
(Discourses, Machiavelli also notes that:
"Rome remained free for four hundred years and Sparta for eight hundred"
with an armed populace, while other countries who disarmed their citizens
"lost their liberties in less than forty years."
(The Art of War, 18) The comparison of Machiavelli’s writing to similar wording found in our Constitution
proves to be surprisingly similar.
Machiavelli wrote that private citizens made up the
(The Art of War, 39)
to the security of a free State.."
well regulated, meant the same thing: Citizens trained to arms.
"..regular and well ordered militia.."and our Constitution reads "A well regulated Militia being necessaryTo Machiavelli, well ordered, and to our founding fathers Seventeenth Century Thought
In the 17th century, great thinkers attempted to justify the existence of absolute rulers,
while others such as Algernon Sidney and John Locke argued for a democratic republic.
In arguing for a monarchy, Jean Bodin sees the deprivation of arms essential to
maintaining a ruler’s authority. Bodin believed that such ruler’s were above the law.
Similar to today’s argument’s for gun control, Bodin saw arms control as a means of
people control, to control the masses and prevent seditions. Similar to today, the
arguments used in achieving an unarmed populace were to prevent murders, and
seditions. Bodin states in his Six Bookes of A Commonweale (1606),
"..the law may be good, just, and reasonable, and yet the prince to be no
way subject or bound thereto: as if he should forbid all his subjects, except
his guard and garrison soldiers, upon pain of death to carry weapons, so to
take away the fears of murders and seditions; he in this case ought not to
be subject to his own law, but to the contrary, to be well armed for the
defense of the good, and punishment of the evil."
Commonweale, 106)
(Six Bookes on A To Bodin, the ruling monarchy was to be placed above the laws that governed their
subjects. Acts not unlike what Bodin had envisioned, occur today where citizens are
disarmed by law, yet the privileged class is exempted.
John Locke was also an advocate of the citizen soldier. Locke explained in great detail in
his Two Treatises on Civil Government (1689), that government of man must be based
on mutual consent, and that each individual remains free due to the natural laws of
nature. Because of this, each man has the right to overthrow a despotic government. As
each individual maintains their natural rights, they also have the right to defend those
rights against any individual or group who threatens them. Locke wrote:
".. it being reasonable and just I should have a right to destroy that which
threatens me with destruction."
(Second Treatise of Civil Government, 14) Locke firmly believed that man had a moral right to use force to overthrow an unjust
government. That the right to resist an unjust government with arms was little different
than protecting one’s self from an individual’s aggression.
Framer’s Intent
Locke’s influence on our founding fathers was profound. His major contribution that all
men retain their natural rights to life, liberty, and property became a major influence on
how our Constitution was written. The Virginia Declaration of Rights, (which was largely
written by George Mason on June 12, 1776), nearly echoed verbatim Locke’s views on
natural rights. Article One states:
"That all men are by nature equally free and independent, and have certain
inherent rights, of which, when they enter into a state of society, they
cannot, by any compact, deprive or divest their posterity; namely, the
enjoyment of life, liberty, with the means of acquiring and possessing
property, and pursuing and obtaining happiness and safety."
Article 13 of the Virginia Bill of Rights further states:
"That a well regulated militia, composed of the body of the people, trained
to arms, is the proper, natural, and safe defense of a free state; that
standing armies, in time of peace, should be avoided as dangerous to
liberty; and that, in all cases, the military should be under strict
subordination to, and governed by, the civil power."
Here again we plainly see that the early framers of the Declaration of Rights believed that
the new nation’s security rested upon a citizen militia. The idea presupposes a natural
right for the citizens to keep and bear arms. Virginia’s Declaration of Rights would later
serve as the model for our own Constitution.
During the Philadelphia Convention of 1788, Patrick Henry argued passionately for the
individual’s rights against the Federalists James Madison and Edmund Randolf. Henry
was insistent that the new Constitution of the United States contain a Bill of Rights
similar to Virginia’s. Madison did not believe one was necessary as the people retained
the right to overthrow an unjust government. He also believed that all rights not given up
to the new government were retained by the people.
Henry and Mason both argued against ratifying the new Constitution unless specific
right’s were enumerated as had been done with their own State Constitution. Randolf,
himself an ally of Madison’s, refused to sign the new Constitution unless a Bill of Rights
were present.
(Madison and The Bill of Rights, 4) The original language of the Second Amendment as proposed by Madison, read:
"The right of the people to keep and bear arms shall not be infringed; a
well armed, and well-regulated militia being the best security to a free
country: but no person religiously scrupulous of bearing arms, shall be
compelled to render military service in person." (Madison and the Bill of
Rights, 5)
Madison added the language of the right to keep and bear arms in first draft. A right of
the people. The wording the house committee chose read:
"A well regulated militia, composed of the body of the people, being the
best security of a free state, the right of the people to keep and bear arms
shall not be infringed, but no person religiously scrupulous shall be
compelled to bear arms."
This draft, reversed the people and militia clauses but retained Madison’s conscientious
objector clause. Additionally author Halbrook points out that it is clearly shown from
Madison’s notes that he would use to propose the Amendment:
"They [the proposed amendments] relate first to private rights .." (That
Every Man be Armed, 76)
The Senate version dropped the conscientious objector clause all together, and what was
to become our nation’s second amendment was finally adopted by the states:
"A well regulated militia being necessary to the security of a free state, the
right of the people to keep and bear arms, shall not be infringed."
During the House debates, of our Second Amendment, Representative Elbridge Gerry
begged the question:
"What, Sir is the use of a militia? It is to prevent the establishment of a
standing army, the bane of liberty."
The well-regulated clause of the second amendment suggests that the citizen soldier must
retain not only the right to keep and bear arms, but must be proficient in their use.
Every Man Be Armed, 78)
(That The argument that the "well-regulated militia" clause implies a collective rather than an
individual right can be rebuked with the Federalist Papers number 29, where Alexander
Hamilton wrote:
"..the great body of yeomanry and of the other classes of citizens to be
under arms for the purpose of going through military exercises and
evolutions, as often as might be necessary to acquire the degree of
perfection which would entitle them to the character of a well-regulated
militia."
(Federalists #29, 184-185) Here, as can be clearly seen, a well-regulated militia is composed of ordinary citizens
who are trained to arms. The contemporary argument used by gun control advocates that
the militia clause means only police or the government should be allowed to have arms,
has no historical, or factual precedence what so ever.
Conclusion
The militia is quite simply you and me. It is our moral duty to be proficient in the use of
arms for our own self preservation and that of our country. Standing armies have been
viewed as the bane of liberty, and not the protectors of it. Freemen have a right and moral
duty to oppose the unlawful taking of our natural rights by any means available to us. As
radical and revolutionary as this may sound today, it has been said many times before. It
is as true today as it was in Ancient Rome, Sparta, or in Eighteenth Century Virginia.
Works Cited
Plato, Republic 139-140 (E. Vornford translation. 1945), as cited by Halbrook, Stephen
P., That Every Man Be Armed, p. 9. The LibertyTree Press, San Francisco CA. 1984.
Plato, Republic, p. 295 (E. Vornford translation. 1945), as cited by Halbrook, Stephen P.,
That Every Man Be Armed, p. 10. The LibertyTree Press, San Francisco CA.
Kagan D., and Ozment S., and Turner F., The Western Heritage (Fourth Edition, Volume
II), p. 653. Macmillan Publishing Company, NY, 1987.
Id. at 679.
Aristotle, Politics, p. 82, as cited by Halbrook, Stephen P., That Every Man Be Armed, p.
9. The LibertyTree Press, San Francisco CA. 1984.
Halbrook, Stephen P., That Every Man Be Armed, p. 12. The LibertyTree Press, San
Francisco CA. 1984.
Cicero, Selected Political Speeches, pp. 79-81 (M. Grant transl.1969), as cited by
Halbrook, Stephen P., That Every Man Be Armed, p. 16. The LibertyTree Press, San
Francisco CA.
Halbrook, Stephen P., That Every Man Be Armed, p. 18. The LibertyTree Press, San
Francisco CA. 1984.
Machiavelli, Discourses, p. 107, as cited by Halbrook, Stephen P., That Every Man Be
Armed, p. 21. The LibertyTree Press, San Francisco CA. 1984.
Machiavelli, The Art of War, p. 18, as cited by Halbrook, Stephen P., That Every Man Be
Armed, p. 22. The LibertyTree Press, San Francisco CA. 1984.
Machiavelli, The Art of War, p.39, as cited by Halbrook, Stephen P., That Every Man Be
Armed, p. 22. The LibertyTree Press, San Francisco CA. 1984.
Bodin, Jean, Six Books on A Commonweale, p. 106, as cited by Halbrook, Stephen P.,
That Every Man Be Armed, p. 25. The LibertyTree Press, San Francisco CA. 1984.
Locke, John, Second Treatise of Civil Government, p.14, (Chicago 1955), as cited by
Halbrook, Stephen P., That Every Man Be Armed, p. 22. The LibertyTree Press, San
Francisco CA. 1984.
McCabe, Michael K., Madison & The Bill Of Rights, p. 4, American Rifleman, Feb.,
Mar., Apr., 1991. National Rifle Association, Washington DC.
Id. at 5.
Halbrook, Stephen P., That Every Man Be Armed, p. 76. The LibertyTree Press, San
Francisco CA. 1984.
Id. at 78. The Right to Keep and Bear Arms
The Legacy of Republicanism vs. Absolutism
By Gary A. Shade
Gary Shade is the President and co-owner of Shade’s Landing Inc., a family owned and
operated web design and hosting company based in Minnesota. Mr. Shade is the author of
over 80 computers articles, and five books on computers published by Prentice Hall, and
Holt, Rhinehart and Winston as well as other publishers. Mr. Shade holds an AAS in
Electronics Technology and BSM in Management from Cardinal Stritch University and
will earn his Masters of Science in Management in October 2003. He has served on
various community organizations for the City of Apple Valley Minnesota and for Dakota
County Minnesota including the Dakota County Watershed Management, Gardenview
Drive Traffic Ad-Hoc committee and the Black Dog Watershed Committee. He has
testified before the Minnesota State Legislature on proposed firearms legislation and
worked on various political campaigns. He’s married with two children. His hobbies
include fishing and hunting, firearms collecting, Amateur Radio (his call sign is
KC0LFP) and muscle cars Mr. Shade is an ardent and outspoken critic of "zero tolerance"
programs, and police abuse and is an equally ardent supporter of civil rights and the
Constitution. He is also a certified NRA Instructor on Basic Pistol and Personal
Protection.
First Published: January 10, 1993
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