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Self-Government and the Unalienable Right of
Self-Defense: Restoring the Second Amendment
by Erich M. Pratt
- I. Introduction II. Self-government and Self-defense
Embodied in the Second Amendment to the Constitution is the truth that self-governing individuals should bear the responsibility for defending themselves. The 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.
This Amendment has generated a considerable amount of controversy among legal scholars.1 Some argue that the Amendment grants an "individual right" to keep and bear arms, while others believe that this right only applies collectively to those in the militia.
Without fail, however, most scholars ignore the foundational principles which are embodied in the Second Amendment. The law of self-government is almost entirely absent from the writings of Second Amendment scholars, and the right of self-defense, if mentioned, is only treated as a constitutional or historical by-product. Rarely does anyone ever treat self-defense as a natural right, or as one founding father said, "a primary law of nature, which . . . (is] the immediate gift of the Creator."2 As a God-given right, self-defense is an unalienable right which is incapable of being surrendered or transferred. But to understand these principles and how they interrelate, one must first examine the "Laws of Nature and of Nature's God."
In 1776 the framers of the Declaration of Independence appealed to the "Laws of Nature and of Nature's God."3 They unanimously affirmed that these laws would define the legal rights and principles which would both justify their separation from England and help them establish any future government.
The framers understood the laws of nature and of nature's God to refer to those laws which the Creator had revealed to man. Law was seen as God-given, not man-invented; fixed and permanent; binding everyone in every nation. Furthermore, the framers also believed that the laws of nature and of nature's God explained the nature of man's rights. Rights were God-given, not government-created. And the Declaration of Independence affirmed this truth by asserting that "all Men . . . are endowed by their Creator with certain unalienable Rights." In short, the laws of nature and of nature's God are crucial to understanding the essence of self-government and self-defense. The founders considered both principles to be divinely instituted and far-reaching in their application.
Three ideas which are reflected in the Declaration are the laws of nature, unalienable rights and self-government. What the Declaration has to say is important because it is the Charter of the United States.4 Any form of government established after the Charter must be consistent with its principles, Just as any corporate form of government must be consistent with its corporate charter.5 The founding fathers realized this indisputable legal maxim. In 1787, they drafted a Constitutional form of government upon which John Quincy Adams later observed, "was the complement to the Declaration of Independence; founded upon the same principles, carrying them out into practical execution, and forming with it, one entire system of national government."6 In other words, the Declaration gives meaning to the Constitution. If the Declaration's principles are separated from the Constitution, then the Constitution's meaning is likely to reflect the transient whims of the majority, the highly vocal or a powerful elite. Both the Declaration and the Constitution are significant legal documents because both, by nature, comprise the covenantal foundation of the United States. Just as a corporate charter and constitution govern the corporation's exercise of authority, so too the Declaration and Constitution set forth the legal and political principles that govern the national objects of the nation.
As an appendage to the Constitution, the Second Amendment must therefore be interpreted according to the principles found in the Declaration and Constitution respectively. Both documents, however, are only lawful to the extent they conform to the laws of nature and of nature's God. For example, no science text book is accurate if it denies or ignores the existence of the law of gravity. Neither is a charter or a constitution lawful if its principles are contrary to the laws of nature.
Consequently, the laws of nature and of nature's God are the foundation for any discussion of law and rights. This higher law declares that all human beings are self-governing individuals. And while the Declaration articulates the law of self-government, the Constitution in turn reflects the application of this law in a variety of contexts, one of which is found in the Second Amendment. The law of self-government is thus vitally important to any discussion of self-defense. To these matters, attention is now focused.
One principle derived from the laws of nature and of nature's God is the law of self-government. Self-government, properly understood, involves those duties man owes to the Creator, such as the duties toward God, neighbor and himself. The key idea, however, is that men are capable of directing and controlling themselves.
The Declaration acknowledges the law of self-government by asserting "that all Men are created equal" -- a statement which presupposes that all men are equally made in the image of God.7 As God's image-bearer, man is accountable to the Creator for his actions.8 This accountability requires man to govern himself properly and to ensure that the exercise of rights conforms to the Creator's law. This conformity to the law must come from the inside-out -- man's internal will must control his external actions.
Since man is responsible for governing himself, no man has an inherent right to govern another man. One exception to this rule occurs when a person voluntarily consents to be governed by another. Self-governing individuals may therefore choose those whom they desire to rule over them.
The Declaration affirms this principle in two contexts. It first asserts that civil governments derive "their just powers from the consent of the governed." Second, it observes that the people can change their form of government whenever it becomes destructive of the people's freedoms.
The Declaration states,
[I]t is the Right of the People to alter or to abolish it [the existing government], and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.
In other words, the people have the unalienable right to govern themselves, whether they "institute" a government, "organize" its powers, or "alter" or "abolish" it when it becomes tyrannical. Governments are likewise established from the inside-out -- the original authority residing in the hands of the people, not in the hands of a few civil rulers.9
One aspect of self-government is the duty of self-defense, which the founders also considered to be an unalienable right.10 This right, similar to the law of self-government, also works from the inside-out, meaning that, self-governing individuals should bear the primary responsibility for defending themselves. The Declaration affirms this maxim by stating that, "it is their [the people's] Right, it is their Duty, to throw off such Government [i.e., a tyrannical one], and to provide new Guards for their future Security." This statement presupposes a people's right of self-defense.
King George III, however, had assumed the opposite. He believed that the right of self-defense originated in government, not in the people. In the Declaration, the founders stated that the king had kept "among us, in Times of Peace, Standing Armies, without the consent of our Legislatures." Without the consent of the people through their legislatures, the standing armies were seen to be one of the king's many attempts to establish "an absolute Tyranny over these States." Consent was important because the ultimate authority for self-defense originated in the people.
The founders believed that the right of self-defense stemmed from the "Laws of Nature and of Nature's God."11 As mentioned earlier, these laws are important for they are the legal framework in which one must interpret the Constitution and the Bill of Rights -- particularly the Second Amendment. Moreover, these laws of nature and of nature's God are important because they influenced the thinking of the founding fathers more than anything else -- more than the common law or the classical writers did.
To understand the actions of the founders, one must first understand their thinking. And by examining the National Charter (that is, the Declaration of Independence), one can find what affected their thinking the most. Although the founders were well versed in the classics and the con law, they did not appeal to Aristotle, Cicero, Locke or Blackstone to justify their break with England. Instead, they appealed to "the Laws of Nature and of Nature's God."
From these laws, the founders formulated an entire political philosophy, the basics of which are stated in the Declaration. The founders stated,
That all Men are created equal, that they are endowed by their Creator with certain unalienable Rights . . . That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it.
But what are the "Laws of Nature and of Nature's God"? John Quincy Adams said that this phrase,
Presupposes the existence of a God, the moral ruler of the universe, and a rule of right and wrong, of just and unjust, binding upon man, preceding all institutions of human society and of government.12
Adams' statement recognizes that God has revealed his law to men and that this law is binding upon everyone. The phrase "Laws of Nature and of Nature's God" was a common way to assert that God had revealed his law through two outlets: nature and the Bible.13 In fact, the laws of God, the laws of nature, and the laws of the Bible were all considered synonymous. For example, James Wilson, one of the few men to sign both the Declaration and the Constitution, declared that, "It should always be remembered, that this law, natural or revealed (in the Bible] . . flows from the same divine source: it is the law of God."14 Similarly, Samuel Adams, another signer of the Declaration, stated that,
All men are equally bound by the laws of nature, or, to speak more properly, the laws of the Creator. They are imprinted by the finger of God on the heart of man. . . . [T]he voice of Nature . . . is confirmed by written Revelation.15 (Emphasis added.)
God's written revelation was very important to the founders. In fact, by appealing to the "Laws of Nature and of Nature's God," they were affirming their submission to the laws of the Bible. (See Appendix A.) John Q. Adams stated, for instance, that
From the day of the Declaration . . . [t]hey [the American people] were bound by the laws of God, which they all, and by the laws of the Gospel, which they nearly all, acknowledged as the rules of their conduct.16
This is significant for it indicates that one must examine the Scriptures to understand the political thinking of the founding fathers. The framers, however, did not use explicit Biblical examples to support their arguments because they considered sectarian terminology to be inappropriate in the legal sector.17 Instead, they illustrated their principled arguments with examples from "secular" history and "secular" writers, which reflected the laws of God in non-religious terms.
By using non-sectarian terminology, the founders were able to express their Biblical world-view in the legal sphere. It is evident from the sermons preached during the eighteenth century that both clergy and laymen alike had a good grasp of the Biblical principles of government. Moreover, the clergy had much to say about the Scriptural arguments for self-defense, for they drew upon the theological insights of the Protestant theologians of the Reformation and the Catholic theologians of the Middle Ages.
Catholic theologians such as St. Augustine (? -604) and Thomas Aquinas (1225-1274) asserted that a defensive war was justifiable.18 The Spanish theologian, Francisco Suarez (1548-1617), stated that private wars of self-defense could, under certain conditions, be justifiable.19 Protestant Reformers such as Stephen Junius Brutus (? -1689), Samuel Rutherford (1600-1661) and John Calvin (1509-1564) asserted that tyrannical kings can be deposed by lower-level government rulers.20 Rutherford, for example, stated that,
We hold, that the king using, contrary to the oath of God and his royal office, violence in killing . . . his subjects, by bloody emissaries, may be resisted by defensive wars, at the commandment of the estates of the kingdom. . . . Now, that they [the estates] may take away this power, is clear in Athaliah's case [II Kings 11:1-21].21
Brutus and Rutherford also spoke of an individual right of self-defense.22 With this theological background, it is not surprising that eighteenth century pastors had much to say on the subject of self-defense. Many of the preachers in the 1700's believed that self-defense was a right given by God. A Biblical example is found in the life of David, who took Goliath's sword to protect himself from King Saul who was seeking to kill him.23 David's actions show that fleeing can often be better than fighting -and this he did frequently. But the mere fact that he armed himself with both men and weapons shows that he was prepared to fight if he was forced to defend himself.24 As Rutherford states,
If Saul had actually invaded David for his life, David might, in that case, make use of Goliath's sword, (for he took not that weapon with him as a cypher to boast Saul it is not less unlawful to threaten a king than to put hands on him.)25 (Emphasis added.)
Also, David's actions reveal the boundaries of self-defense. One can only defend oneself against an attack; if one is not in danger of any harm, then there is nothing to resist. That is why David did not attack Saul in his sleep.26 A sleeping enemy could hardly be considered a deadly threat, and thus, for David to kill in that situation would have been an assault, not self-defense. Rutherford states that,
[For] David to kill Saul sleeping . . . had not been wisdom nor justice; because to kill the enemy in a just self-defence, must be, when the enemy actually doth invade, and the life of defendant cannot be otherwise saved. A sleeping enemy is not in the act of unjust pursuit of the innocent.27
One might argue, however, that David refrained from attacking Saul for a different reason. After all, David said, "The Lord forbid that I should do such a thing to my master, the Lord's anointed, or lift my hand against him; for he is the anointed of the Lord."28 Is David saying that kings are immune from punishment? No, for Athaliah's case shows that tyrants can be punished by the lower-level government officials.29 By affirming that Saul was the "Lord's anointed," David not only indicates that Saul was not a tyrant but also that he was still the lawful ruler of Israel. This is a reasonable conclusion since Saul's attack was not against the kingdom, but against David only. Rutherford concludes that an assault against a single individual does not make a king a tyrant:
Saul intended no arbitrary government, nor to make Israel a conquered people, nor yet to cut off all that professed the true worship of God; nor came Saul against these princes, elders and people, who made him king, only David's head would have made Saul lay down arms.30
Thus, David could only use the sword of self-defense.
But when an attack is levied against the entire kingdom by either a tyrant or a foreign nation, the situation is entirely different. An attack made against the entire nation is an act of war. While the people in the kingdom certainly have the authority to defend themselves, only the civil authorities can bear the sword of vengeance.31 Rutherford states that,
One man sleeping cannot be in actual pursuit of another man; so that the self-defender may lawfully kill him in his sleep; but the case is far otherwise in lawful wars; the Israelites might lawfully kill the Philistines encamping about Jerusalem to destroy it, and religion, and the church of God, though they were all sleeping; even though we suppose king Saul had brought them in by his authority, and though he were sleeping in the midst of the uncircumcised armies.32
By stating that "the Israelites might lawfully kill the Philistines," Rutherford is referring to the Israelite citizens under the authority of the civil leaders. Rutherford qualifies this statement elsewhere by asserting that "If the king should sell his country, and bring in a foreign army, the estates (emphasis added) are to convene, to take course for the safety of the kingdom."33
Thus, while an individual can bear the sword in self-defense, only the civil magistrates can bear the sword of vengeance in an "offensive" manner. (Bearing the sword "offensively" would include imposing a civil punishment, levying an attack against a retreating enemy in battle or launching a preemptive strike, assuming there is a just cause.)
In short, many eighteenth century preachers viewed Abraham, Joshua and David as examples of men who had exercised the duty of self-defense.34 Not only did these preachers assume that self-defense was a God-given right, but they also believed that self-defense was consistent with being a Christian. For example, one preacher asserted that, "Self-defense is an established law of our nature . . . which has never been superseded by any written law of God, or by the religion of Jesus."35
The preachers during this era also taught Biblical methods of self-defense -- all of which adhered to the inside-out principle. The first method was the duty of the people to bear arms for their defense. In the Old Testament, the Israelites were frequently required to bear arms. Moses commanded the Gadites and the Reubenites to arm themselves and go into battle.36 This duty was also enforced by Nehemiah who required the people to carry weapons while they worked.37 In fact, some of the citizens worked with one hand and held a sword in the other.
The New Testament also upholds this duty to bear arms. Jesus never repealed this duty, rather, he upheld it. On one occasion, Jesus commanded the disciples to acquire swords; if they did not have one, they were to sell their cloaks and buy one.38
This duty to bear arms was the Biblical precedent. Conversely, "weapon control" was equivalent with slavery. On two occasions, foreign nations kept the Israelites from bearing arms. As a result, these enemies were able to keep Israel in bondage.39 The right and duty to have arms was essential to preserving liberty.
This duty was stressed by many of the eighteenth-century pastors. For example, Simeon Howard, preaching on the subject of the liberty that Christ has given man (Galatians 5:1), encouraged his listeners to be armed for their defense: "A people who would stand fast in their liberty, should furnish themselves with weapons proper for their defense, and learn the use of them."40 Another pastor asserted that man's sinful nature "renders this knowledge [of the use of arms] absolutely requisite, to protect a country against bands of public robbers and murderers."41
A second method of self-defense lies in the collective form of a well-regulated militia. In the first chapter of Numbers, one sees that Israel has no professional, "standing" army. Instead, the defense of the nation rests in the hands of the militia, a citizen-army composed of every male over 20 years of age.42
Self-defense, however, is not the only principle embodied in the militia. Equally important to understanding the nature of this citizen-army is the principle of self-government. First, the militia is a collection of individuals who, as a function of self-government, have covenanted together to defend each other. Whenever people enter into society by way of a social compact, they not only become "one People" as stated by the Declaration, they also take on certain obligations, one being the duty to defend one another.43 Every citizen in society has a covenant duty to defend his neighbor -- a duty which can be adequately fulfilled in the militia.
Second, the principle of self-government is further reflected in the organization of the militia powers. The Declaration asserts that the people can organize the powers of government "in such Form, as to them shall seem most likely to effect their Safety and Happiness." The militia is a particular way of "organizing" the sword of vengeance so that everyone in the nation, as opposed to a select minority, can bear the sword. There are two advantages to this system. First, the inside-out principle of self-defense is preserved because everyone is required to defend the country. Second, by placing the sword of vengeance into the hands of everyone, the militia becomes an effectual defense against the tyranny of a select few. Of course, a citizen can only bear the sword of vengeance while on official, militia duty. At that point, he is "deputized" and can wage war on the enemy. He is not limited to mere self-defense; he can go on the offensive by either launching a preemptive strike (only for a just cause) or attacking a retreating enemy in battle. In short, the militia combines the sword of self-defense and the sword of vengeance into one body.
In 1790, Jonathan Homer published a sermon on the Israelite militia:
OF ZEBULUN SUCH AS WENT FORTH TO BATTLE, EXPERT IN WAR, WITH ALL INSTRUMENTS OF WAR, FIFTY THOUSAND, WHICH COULD KEEP RANK: THEY WERE NOT OF DOUBLE HEART II Chronicles 12:331. The zeal of the tribe of Zebulun was conspicuous on the occasion. Fifty thousand of its citizens, with arms in their hands, marched to the capital. These appear to have been the flower of the militia. They were "such as went forth to battle. expert in war." . . . [T]hey were sufficiently trained to contend with the foes of their country. They were accordingly prepared to fight, should events require it.
They were not mercenary soldiers. . . . They were the freemen, the citizens of the state, who viewed their religion, their wives, their children, their property, involved in the liberty,4 he safety, and the regular government of their country.44
Having shown the Biblical model, Homer concluded that the militia was the best defense for the country. Quoting George Washington, he stated that,
"The Militia of this country must be considered as the palladium of our security, and the first effectual resort in case of hostility."45
A third method of defense was the standing army in a time of peace. These armies were comprised of professional soldiers who made the military their career. Standing armies were labeled as such because they were not engaged in war -- they were "standing" around, waiting for a future conflict.
The colonial pastors tended to dislike standing armies. I Samuel 8 gives the Biblical reason for such an attitude. In this chapter, the prophet Samuel warns the Israelites that the type of king they are asking for
will take your sons and make them serve with his chariots and horses, and they will run in front of his chariots. Some he will assign to be commanders of thousands and commanders of fifties . . . and still others to make weapons of war and equipment for his chariots. . . . [y]ou yourselves will become his slaves. When that day comes, you will cry out for relief from the king you have chosen.46
In other words, a government that centralizes the military strength of a nation will reduce the people to slavery.
This happens because standing armies encourage a spirit of apathy among the citizenry. The people become lackadaisical, and militia duty is neglected. As one pastor asserted in 1770, standing armies tended
to prevent the militia of the kingdom from ever becoming respectable. . . . [W]hat a defenceless condition should we be, if our fortifications are suffered to crumble to pieces, and the use of arms is neglected?47
When the people and the militia lose their vigilance and are no longer trained in self-defense, a standing army can easily subjugate the citizenry. Simeon Howard stated that,
A standing army may be fatal to the happiness and liberty of a community. They generally propagate corruption and vice where they reside, they frequently insult and abuse the unarmed and defenceless people . . . land] may be the means, in the hands of a wicked and oppressive sovereign, of overturning the constitution of a country, and establishing the most intolerable despotism.48
Reverend Howard believed that tyranny would result when the people deferred their duty of defense to a select group of government soldiers. He felt that an outside-in approach to defense was dangerous and that it should be avoided. Thus, he encouraged everyone to remain vigilant and to be prepared to defend his country.
Of course, the church in the 1700's was not without its share of pacifists, which led many preachers to address their objections. (See Appendix B.) But pacifists were in the minority, and as a result, the founding fathers were not influenced in that direction.
The founders believed in the Biblical right of self-defense, although they did not articulate it as a preacher would have explained it. Instead, they embodied the Biblical principle of self-defense in non-sectarian terminology. For example, while Madison affirmed that self-defense was a God-given right, he said it in non-religious language. He stated that "the great principle of self-preservation" was a "transcendent law of nature and of nature's God."49 Similarly, Hamilton asserted that "if the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense.50
While the founding fathers drew their primary insights from the laws of nature and the laws of God, they illustrated these ideas with historical examples.51 And thus, they studied writers such as Aristotle, Cicero, Machiavelli, Locke, and Sidney.
What the classical writers had to say about self-defense, the "right" to keep and bear arms, the militia and standing armies is explored in Steven Halbrooks', That Every Man Be Armed. A few excerpts from his book will show the thinking that was prevalent among the classical authors.
For example, Cicero stated that the private use of arms was Justifiable, if used in self-defense:
There exists a law . . . which comes to us . . . from nature itself . . . . I refer to the law which lays it down that, if our lives are endangered by plots or violence or armed robbers or enemies, any and every method of protecting ourselves is morally right. . . . [A] man who has used arms in self-defense is not regarded as having carried them with a homicidal aim.52
Also, Machiavelli argued that a militia was the best form of national defense: "A state ought to depend upon only those troops composed of its own subjects; that those subjects cannot be better raised than by a citizen's militia.53 Elsewhere he stated "that by establishing a good and well-ordered militia, divisions are extinguished, [and] peace restored."54
Finally, standing armies were not well liked by the classical writers. Many spoke out against such armies in favor of a militia.55 These writers argued that individuals may defend themselves and that the military force of a country should be lodged in the hands of the people.
The English common law was another tremendous influence upon the founding fathers. As stated by the Supreme Court in Ex Parte Grossman, 267 U.S. 87 (1924)
[The founders] were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. . . . [W]hen they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they would be shortly and easily understood.
The common law, therefore, is important to understanding the Second Amendment.
William Blackstone was a respected commentator on the common law at the time of America's revolution. His Commentaries were very influential in England, and in the United States, where they became the cornerstone of American law.56
Self-defense was very important in the English common law. Blackstone asserted that "Self-defense . . . is justly called the primary law of nature."57 Being a law of nature, self-defense was also considered to be a "natural right."58 Consequently, weapons were very important because they helped preserve this right. "The subjects of England are entitled," Blackstone stated, "to the right of having and using arms for self-preservation and defense."59
Self-defense being an important right, the common law took certain precautions to preserve it. The first method has already been mentioned -the right to have arms. Second, the common law provided for the mustering of the militia. Finally, no standing armies existed for centuries.
Because England did not have a standing army until the seventeenth century, the military force consisted of the citizenry.60 England's army was the militia -- a citizen-army. Furthermore, England did not have a regular police force until the nineteenth century.61 A justice of the peace, a sheriff or a constable was the only official law enforcement officer needed. Every citizen had a duty to be a "policeman."
In order for the English citizen to carry out his military and police duties, it was necessary for him to remain armed, to be trained with arms, and above all, to remain vigilant. Numerous statutes were passed to further these objectives. In 1181, the Assize of Arms required every freeman between 15 and 40 to possess arms. Under the Assize of Arms of 1253, the requirement was also extended to villeins (or serfs). By the middle of the thirteenth century, then, every male citizen was required to be armed, even those who were considered as the least important in society (such as the serfs).62
Beyond the duty to be armed, citizens were also required to be proficient with their arms. In 1369, citizens were commanded to spend their leisure time during holidays practicing with their bows and arrows. Furthermore, they were to give up any games which diverted them from their practice.63
Self-defense was an important matter to the English. Even when King Henry VIII limited the shooting (but not the possession) of longbows, there was an exception made for those who "shote owt of a howse for the lawefull defens of the same.64
The militia was another important matter to the English for its existence served as a tremendous check upon the kings' power. A British historian, Charles Oman, remarks on this truth:
More than once he [Henry VIII] had to restrain himself, when he discovered that the general feeling of his subjects was against him. . . . His 'gentlemen pensioners' and his yeomen of the guard were but a handful, and bills or bows were in every farm and cottage.65
A drastic change of policy occurred in the seventeenth century when several restrictions were imposed upon the English. The Militia Act of 1662 empowered the government officials to search for and seize the weapons of individual citizens. The civil officials knew where to retrieve the guns because gunsmiths were required to furnish lists of purchasers to the government.66
In 1671, the Game Act restricted the poor from using certain weapons which were useful for hunting.67 Although the stated purpose for this act was to preserve the diminishing game resources, William Blackstone disagreed. He asserted that the covert purpose was the "prevention of popular insurrections and resistance to the government, by disarming the bulk of the people . . . [which] is a reason oftener meant than avowed."68
In 1688, William of Orange took the throne of England in what was known as the Glorious Revolution. Before the coronation, however, he had to swear to uphold a Bill of Rights which had been drafted by Parliament. With respect to gun ownership, the Bill of Rights stated "That the subjects which are Protestant may have arms for their defense suitable to their conditions and as allowed by law."69 This right was a protection of individual self-defense and was not limited to a militia purpose. In fact, an earlier draft had only allowed Protestants to "keep arms for the common defense."70 Yet this wording was specifically rejected.71
Thus, England's history shows that self-defense was an individual duty. It was not to be delegated to a select few.
The colonists in America held attitudes similar to the English regarding self-defense. First, the founders were committed to maintaining an armed populace. For instance, Patrick Henry stated during the Virginia Convention that "The great object is, that every man be armed."72 Richard Henry Lee, a delegate to that convention, wrote that "To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them."73 George Mason even equated slavery with the confiscating of weapons: "Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man . . . to disarm the people."74
In addition to the right of bearing arms, the colonists also had the duty to be armed, to be trained in the use of those arms, and to be vigilant. A Congressional Subcommittee lists some of the laws in the colonies which reached these objectives:
In 1623, Virginia forbade its colonists to travel unless they were "well armed"; in 1631 it required colonists to engage in target practice on Sunday and to "bring their peeces to church." In 1658 it required every householder to have a functioning firearm within his house and in 1673 its laws provided that a citizen who claimed he was too poor to purchase a firearm would have one purchased for him by the government, which would then require him to pay a reasonable price when able to do so. In Massachusetts, the first session of the legislature ordered that not only freemen, but also indentured servants own firearms and in 1644 it imposed a stern 6 shilling fine upon any citizen who was not armed.75
The colonists jealously guarded their right to bear arms. The Revolutionary War started with the Battle of Lexington in 1775 when the British were marching to seize the colonists' weapons at Concord. The colonists cited this attempt at gun control as one of the causes of the war in the Declaration of the Causes and Necessity of Taking up Arms.76 Clearly, they considered weapons to be a vital part of preserving the right and duty of self-defense.
Another similarity with the English system was the colonial militia. As members of a body-politic, the colonists realized that they had certain duties to their fellow neighbor. Consequently, military duty in the colonies was not delegated to a standing army, rather it was a job for every male citizen as a member of the militia.77 When the King of England violated this individual-outward principle, the colonists petitioned him, listing as one of their grievances that "standing armies [were being] kept in times of peace."78 It is thus evident that the colonists did not favor an outside-in view of self-defense. That is, they did not think that the defense of a nation should be delegated to a few government soldiers.
In conclusion, the individual right of self-defense has had an illustrious past. From Moses to Jesus, and from Blackstone to Madison, legal experts have affirmed the exercise of this right. The right of self-defense has also been incorporated into the Declaration of Independence, America's National Charter. Most importantly, the right of self-defense is part of the law of nature and of nature's God, which gives it its unalienable status.
* Copyright © 1989, 2007 Erich M. Pratt. Used with permission.
1. A good example of the intense debate over the Second Amendment can be found in the following report: U.S., Congress, Senate, "The Right to Keep and Bear Arms," Report of the Subcommittee on the Constitution of the Committee on the Judiciary, 97th Cong., 2d sess., 1982, Congressional Information Service, 5522.
2. Elbridge Gerry, "Observations on the New Constitution, and on Federal and State Conventions," Pamphlets on the Constitution of the United States, ed. Paul Leicester Ford (Brooklyn: 1888), p. 4.
3. The first paragraph of the Declaration of Independence states,
- When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature's God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation. [Richard L. Perry, ed., Sources Of Our Liberties (Chicago: American Bar Foundation, 1978), p. 319.1
- Independence was declared. The colonies were transformed into States. Their inhabitants were proclaimed to be one people, renouncing . . . all claims to chartered rights as Englishmen. Thenceforth their charter was the Declaration of Independence. (Emphasis added.) [John Quincy Adams, The Jubilee of the Constitution, (New York: Samuel Colman, 1839), p. 9.]
6. Adams, The Jubilee of the Constitution, pp. 11-12.
7. Genesis 1:26, 27.
8. Romans 14:12.
9. The principle of self-government is also embodied in the U.S. Constitution, and once again, the authority flows from the people to the government. The Preamble of the Constitution states that "WE THE PEOPLE of the United States, in order to form a more perfect Union . . . do ordain and establish this Constitution for the United States of America." It was the people in Convention, and not the civil leaders, who chose the form of government and ratified the Constitution (U.S., Constitution, art. VII, sec. 1.)
10. For example, Elbridge Gerry asserted that "Self-defence is a primary law of nature, which no subsequent law of society can abolish. (Emphasis added.) [Gerry, "Observations on the New Constitution, and on Federal and State Conventions," Pamphlets on the Constitution of the United States, ed. Paul Ford, p. 4.]
Also, Alexander Hamilton stated that, "If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense." (Emphasis added.) [Alexander Hamilton, The Federalist Papers, No. 28, ed. Clinton Rossiter (New York: New American Library, 1961), p. 180.1
11. James Madison stated, for example, that "the great principle of self-preservation" was a "transcendent law of nature and of nature's God." [James Madison, The Federalist Papers, No. 43, p. 279.]
12. Adams, The Jubilee of the Constitution, pp. 13-14.
13. See Appendix A.
14. James Wilson, The Works of James Wilson, ed. James DeWitt Andrews, 2 vols. (Chicago: Callaghan and Company, 1896), 1:92-93.
15. Samuel Adams, The Life and Public Services of Samuel Adams, ed. William V. Wells, 3 vols. (Boston: Little, Brown, and Company, 1865), 3:325.
16. John Quincy Adams, "An Address Delivered at the Request of a Committee of the Citizens of Washington; on the Occasion of Reading the Declaration of Independence, on the Fourth of July, 1821," Washington Gazette, July 10, 1821.
Another similar statement by Adams is cited by John Thornton: "The highest glory of the American Revolution . . . was this: it connected, in one indissoluble bond, the principles of civil government with the principles of Christianity." [John Wingate Thornton, The Pulpit of the American Revolution: or, the Political Sermons of the Period of 1776 (Boston: Gould and Lincoln, 1860), p. xxix.]
17. The founding fathers preferred to use "non-sectarian" terminology in the legal sphere. They did not think that it was appropriate to use church terminology in the civil sphere. Therefore, they expressed their Biblical worldview through the examples of "secular" history and in the terminology of "secular" writers.
For example, George Washington was a devout Christian, as evidenced by his prayer life. He wrote in his prayer diary the following prayer:
- Most Gracious Lord God, from whom proceedeth every good and perfect gift, I offer to thy divine majesty my unfeigned praise and thanksgiving for all thy mercies towards me. . . . [T]hou gav'st thy Son to die for me; and hast given me assurance of salvation. [William J. Johnson, George Washington The Christian (Milford, MI: Mott Media, 1976), p. 281.In another prayer, Washington wrote,Almighty and eternal Lord God, the great creator of heaven & earth, and the God and Father of our Lord Jesus Christ . . . I humbly beseech thee to be merciful to me in the free pardon of my sins, for the sake of thy dear Son, my only saviour, J.C., who came not to call the righteous, but sinners to repentance. [Ibid., p. 31-32.]
- It would be peculiarly improper to omit, in this first official act, my fervent supplications to that Almighty Being, who rules over the universe. . . . We ought to be no less persuaded that the propitious smiles of Heaven can never be expected on a nation that disregards the eternal rules of order and right, which Heaven itself has ordained. [Ibid., p. 161-1621.
It appears that Washington's view of church and state led him to speak differently in each sphere. He believed that the duty of the church was to advance "true religion." And since it was not government's duty to do this, he refrained from even using church terminology in the civil sphere. It was not that Washington refrained from speaking in religious language. After all, this was a man who thanked the Father for sending his Son, Jesus Christ, to die for his sins. Washington did not disagree with what the Presbyterians were saying. He just thought that they should say it in another realm -- the church realm.
Like Washington, most founding fathers did not use religious terminology in the civil sphere. Nevertheless, this does not mean that their ideas were devoid of Biblical content. Washington had no qualms about speaking "religiously" when he was not serving as a government official. Bat when he was acting as a civil servant, he preferred to use non-sectarian language. And one will find that many of the founders followed this pattern when proving their arguments in the civil arena. While they spoke in a non-sectarian manner and used historical examples to illustrate their arguments, their ideas stemmed from the Bible. This is evidenced by their appeal to the "Laws of Nature and of Nature's God" in the Declaration. (See Appendix A.)
18. Robert Maynard Hutchins, ed., Great Books of the Western World, 54 vols. (Chicago: The University of Chicago, 1952), vol. 20: Summa Theologica, by Thomas Aquinas, pp. 578-579.
19. Francisco Suarez, Selections From Three Works of Francisco Suarez, trans. Gwladys L. Williams, Classics of International Law Series (Oxford: Clarendon Press, 1944), 2: 858-865.
20. Stephen Junius Brutus, "A Defense of Liberty against Tyrants," (1579; trans. anon., 1648), in Great Political Thinkers: Plato to the Present, ed. William Ebenstein (Hinsdale, Illinois: Dryden Press, 1969), p. 334; Samuel Rutherford, Lex. Rex. or The Law and the Prince (Harrisonbarg, VA: Sprinkle Publications, 1982), pp. 139-143; John Calvin, Calvin: Institutes of the Christian Religion, trans. Ford Lewis Battles, ed. John T. McNeil (Philadelphia: The Westminster Press, 1960), Book 4, Chapter 20, p. 1519.
21. Rutherford, Lex Rex, pp. 141, 143.
22. Brutus, "A Defense of Liberty against Tyrants," in Great Political Thinkers: Plato to the Present, ed. Ebenstein, p. 344; Rutherford, Lex Rex, pp. 143-144, 156-161.
Samuel Rutherford, who was one of the Divines who met in the Assembly at Westminster, stated that self-defense was part of God's law:
- If my neighbour come to kill me, and I can by no means save my life by flight, I may defend myself; and all divines say I may rather kill ere I be killed, because I am nearer, by the law of nature, and dearer to myself and my own life than to my brother. (p. 156). Self-defense is natural to man. (p. 160).David . . . made his defense by words, by the mediation of Jonathan; when that prevailed not, he took himself to flight, as the next; bat because he knew flight was not safe every way, and nature taught him self-preservation . . . "He took Goliath's sword, and gathered six hundred armed men." (p. 160).If Saul had actually invaded David for his life, David might, in that case, make use of Goliath's sword . . . and rather kill or be killed by Saul's emissaries; because then he should have been in an immediate and nearest posture of actual self-defense. (p. 161). By the law of God and nature, we are to use violent re-offending for self-preservation. (p. 161).
24. 1 Samuel 21:8-10; 22:1-2.
25. Rutherford, Lex Rex, p. 161.
26. I Samuel 24:1-7.
27. Rutherford, Lex Rex, p. 167.
28. I Samuel 24:6.
29. II Kings 11:1-21.
30. Rutherford, Lex Rex, p. 166.
31. The sword of self-defense is assumed in Exodus 22:2-3. The sword of vengeance is stated in Romans 13:3-4.
32. Rutherford, Lex Rex, p. 168.
33. Ibid., p. 97.
34. See Jonathan Homer, Character and Duties of a Christian Soldier (Boston: Benjamin Russell, 1790); John Lathrop, A Sermon Preached to the Ancient and Honorable Artillery-Company in Boston, New England (Boston: Kneeland and Davis, 1774); David Osgood, A Sermon Preached at the Request of the Ancient and Honourable Artillery Company (Boston: Benjamin Russell, 1788); Nathanael Robbins, Jerusalem's Peace Wished (Boston: J. Boyles, 1772); Samuel Stillman, A Sermon Preached to the Ancient and Honorable Artillery Company in Boston, New England (Boston: Edes and Gill, 1770).
35. Stillman, A Sermon Preached to the Ancient and Honorable Artillery Company in Boston. New England, p. 26.
36. Numbers 32:20-22.
37. Nehemiah 4:13.
38. Luke 22:36-38. After Jesus told the disciples to buy a sword, the following dialogue occurred: The disciples said, "See, Lord, here are two swords." "That is enough," he replied (Luke 22:38).
Some have understood this verse to signify that Jesus' statement about buying a sword was metaphorical. For instance, The NIV Study Bible states, "Sensing that the disciples had taken him too literally, Jesus ironically closes the discussion with a curt 'That's plenty!' [v. 38.1 Not long after this, Peter was rebuked for using a sword (v. 50)." (Kenneth Barker, gen. ed., The NIV Study Bible (Grand Rapids: Zondervan Bible Publishers, 1985), p. 1583.1 The editors of The NIV Study Bible state that Jesus did not want the disciples to take him literally. But they only believe this because of their assumption that it is wrong for an individual to bear a sword. If such an action were not wrong, then there would be no reason to assume that Jesus was speaking metaphorically.
After all, how does one know that Jesus responded with "a curt 'That's plenty!"' as the editors of the Study Bible have suggested. Perhaps his response was only a thoughtful, "That is enough." If one assumes that individual self-defense is legitimate, then Jesus' statement makes perfect sense without having to read irony into it. But if Jesus had thought that it was sinful for the disciples to be armed, then he most likely would have treated the situation as sin and told them to leave the swords behind. In fact, Jesus' rebuke of Peter in Luke 22:50 is typical of how Jesus handled sin. Peter used the sword to attack when there was no occasion for self-defense. (The Jews had only come to arrest Jesus, not to kill him and the disciples.) Jesus' rebuke was for Peter's improper use of the sword, not for his possession of a sword. In a parallel account Jesus stated, "Put your sword back in its place" (]Matthew 26:52). (Emphasis added.) This indicates that there was a proper place for the sword; Jesus did not tell Peter to throw away the sword. (For an analysis of Jesus' statement, "for all who draw the sword will die by the sword" (Matthew 26:52], see Appendix B.)
39. Judges 5:8; I Samuel 13:19-22.
40. Simeon Howard, "A Sermon Preached to the Ancient and Honorable Artillery Company in Boston," in American Political Writing during the Founding Era: 1760-1805. ed. Charles S. Hyneman and Donald S. Lutz, 2 vols. (Indianapolis: Liberty Press, 1983), 1:197.
41. Homer, Character and Duties of a Christian Soldier, p. 8.
42. Numbers 1:2-3, 20-46.
43. Numbers 32:1-24; Proverbs 24:11.
44. Homer, Character and Duties of a Christian Soldier, pp. 3, 4, 6.
45. Ibid., pp. 19-20.
46. 1 Samuel 8:11-12, 17-18.
47. Stillman, A Sermon Preached to the Ancient and Honorable Artillery Company in Boston, New England, pp. 28-29.
48. Howard, "A Sermon Preached to the Ancient and Honorable Artillery Company in Boston," in American Political Writing during the Founding Era: 1760-1805, ed. Hyneman and Lutz, 1:198-199.
49. Madison, The Federalist Papers, No. 43, p. 279.
It should be noted that "self-preservation" was often used synonymously with "self-defense." Samuel Rutherford, for instance, used both terms as equals:
- They [the people] reserve the power of self-preservation . . . that they may by common counsel defend themselves. Self-preservation in all creatures in which is nature, is in the creatures suitable to their nature. The bull defendeth itself by its horns, the eagle by her claws and bill. . . . Self-defence is natural to man. . . . [B]y the law of God and nature, we are to use violent re-offending for self-preservation. [Rutherford, Lex Rex, pp. 99, 159-161. (Emphasis added.)]
51. To understand why the founders preferred to use non-sectarian (historical) language in the civil sphere, see endnote number 17.
52. Steven Halbrook, That Every Man Be Armed (Albuquerque: University of New Mexico Press, 1984), p. 17.
53. Ibid., p. 23.
55. Ibid., p. 22.
56. Collier's Encyclopedia, vol. 4, s.v. "Blackstone, William."
57. William Blackstone, Blackstone's Commentaries, ed. St. George Tucker, 5 vols. (Philadelphia: William Young Birch, and Abraham Small, 1803; reprint ed., South Hackensack, NJ: Augustus M. Kelley, 1969), 4:3.
58. Ibid., 2:143.
59. Ibid., 2:144.
60. Joyce Lee Malcolm, "The Right of the People to Keep and Bear Arms: The Common Law Tradition," Hastings Constitutional Law Quarterly 10 (Winter 1983):290.
62. U.S., Congress, Senate, "The Right to Keep and Bear Arms," Report of the Subcommittee on the Constitution of the Committee on the Judiciary, p. 1.
64. Ibid., p. 2.
65. Charles Oman quoted in U.S., Congress, Senate, "The Right to Keep and Bear Arms," Report of the Subcommittee on the Constitution of the Committee on the Judiciary, p. 2.
66. U.S., Congress, Senate, "The Right to Keep and Bear Arms," Report of the Subcommittee on the Constitution of the Committee on the Judiciary, p. 3.
68. Blackstone, Blackstone's Commentaries, ed. St. George Tucker, 5 vols., 3:411.
69. See Richard L. Perry, ed., Sources of Our Liberties, (Chicago: American Bar Foundation, 1978), p. 246.
70. U.S., Congress, Senate, "The Right to Keep and Bear Arms," Report of the Subcommittee on the Constitution of the Committee on the Judiciary, p. 3.
72. Jonathan Elliot, ed., The Debates in the Several State Conventions, vol. 3, (New York: Burt Franklin, 1888), p. 386.
73. The Federal Farmer [Richard Henry Lee], Letters from the Federal Farmer to the Republican, ed. Walter Hartwell Bennett (Alabama: The University of Alabama Press, 1978), p. 124.
74. Elliot, ed., The Debates in the Several State Conventions, vol. 3, p. 380.
75. U.S., Congress, Senate, "The Right to Keep and Bear Arms," Report of the Subcommittee on the Constitution of the Committee on the Judiciary, p. 3.
76. Perry, ed., Sources of Our Liberties, pp. 298, (cf. 231-232).
77. Russell F. Weigley, History of the United States Army (Bloomington: Indiana University Press, 1984), p. 4.
78. Perry, ed., Sources of Our Liberties, p. 286.