I recently ran across a book that should interest anyone who is serious about debating either side of the gun control issue. That Every Man be Armed: The Evolution of a Constitutional Right, by Stephen P. Halbrook, argues for the idea that the Second Amendment guarantees a personal right to keep and bear arms. The alternative, of course, is that the Amendment merely guarantees to the states a right to maintain organized militias (like the National Guard). The author effectively demolishes this argument.
The title comes from a statement of Patrick Henry: “The great object is, that every man be armed….Everyone who is able may have a gun…”
Since Halbrook is a lawyer, his book is not light reading. It details the philosophical and legal background of the Second and Fourteenth Amendments, and follows the development of court decisions after the adoption of these amendments. With 65 pages of notes to back up 200 pages of text, there is plenty of documentation for every claim made in the book. But don’t let this scare you off: the author has a readable style that makes his writing understandable to non-lawyers.
For philosophical background (Chapter 1), the author goes as far back as Plato and Aristotle in ancient Greece. Plato is presented as the bad guy, who advocates the dictatorship of a “philosopher king” and restriction of arms bearing to a military caste. Aristotle, on the other hand, thinks of arms bearing as an essential qualification for citizenship. A similar analysis is made of the thinking of philosophers in ancient Rome and medieval, Renaissance and Enlightenment Europe. In a second chapter, Halbrook covers in detail the development of the English common law tradition of armed freemen (yeomen).
The Second Amendment reads as follows: “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.” Chapter 3 of Halbrook’s book covers in depth the thinking of the Founding Fathers at the time of the adoption of the Constitution and Bill of Rights, including this amendment.
Regarding the reference to a militia, the following from the Virginia Declaration of Rights (by George Mason) is typical of their thinking: “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 the right was thought of as personal rather than collective is made even more clear by the position of the New Hampshire convention for ratifying the Constitution: “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.”
In Chapter 4, Halbrook discusses the interpretation of the Second Amendment in the period between its adoption and the Civil War. He shows that standard legal texts and most court decisions regarded the right to keep and bear arms as an individual right. The exceptions among the court decisions were to be found in the southern states, where slaves and even free “persons of color” were deprived of this right.
Following the Civil War, the Fourteenth Amendment was passed to extend the prohibitions in the Bill of Rights to the states as well as the federal government. The thesis of Chapter 5 is that this was done partly in response to some of the first gun control laws in our nation. For example, an 1866 Alabama law required “that it shall not be lawful for any freedman, mulatto, or free person of color in this State, to own firearms, or carry about his person a pistol or other deadly weapon.”
Finally, in Chapters 6 and 7, Halbrook examines the various federal and state court decisions bearing on the Second Amendment. Decisions of the state and lower federal courts vary widely, and no conclusions could be drawn from them except in certain individual states. The US Supreme Court apparently has never ruled clearly on whether the Fourteenth Amendment extends the prohibitions of the Second Amendment to the state governments. On the other hand, all relevant Supreme Court decisions seem to recognize that the individual right to keep and bear arms is fundamental, and existed prior to the adoption of the Constitution. If and when the Supreme Court finally does rule definitively, we can only hope that they will ignore neither the intentions of the Framers of the Constitution and Fourteenth Amendment, nor the precedents of their own court.