Right to Bear Arms

0:00The story is that I have a friend who works on Capitol Hill, who is one of the Republican staff organizations in Congress, and it's part of his job, he says, to escort foreign visitors around the Capitol and explain how the U.S. government works to them. And this is no easy task because foreigners never understand how the American government and Works, because in this country, among other things, we don't have two clear-cut ideological parties, a party of the left and a party of the right, and they never understand exactly what the Republican Party and the Democratic Party are about. So my friend has had, he's discovered a very simple way of explaining it to them.

0:45He says, well, it's very simple, really. In this country we have two parties, the stupid party and the evil party. But sometimes the two parties get together and they work together for a common end, in which case the result is both stupid and evil. This is known as bi-partisanism. He says that the foreign visitors always say, well, you know, we now understand it, that's exactly what we have in my government. Anyway, that story I thought was relevant to the theme of last year's conference, which was on welfare, and it's maybe even more relevant to this year's topic, the cost of war.

1:40But one of the more bizarre ironies of the Clinton administration is that at the same time it has been waging war or trying to wage war abroad all over the planet, from Somalia to the Balkans, Korea to Haiti, it is also in the process of trying to disarm American citizens at home through the most ambitious program of gun control in American history. Of course, Flatton did not originate this seemingly inconsistent policy. The military interventionism that has now become almost a routine and unremarkable constant of American life originated, at least in recent times, under President Bush in the Gulf War and enjoyed the enthusiastic support of most Republicans in Congress, an enthusiasm somewhat needed today only because a different political party now manages our global adventures.

2:36Nor are the Democrats the only ones who bear responsibility for the disarmament of citizens. Here too, Republicans have played major roles in popularizing the war against guns, not only through the efforts of Sarah Brady and her husband, a pathetic human house plant, But also by the endorsement of the recent Congressional Assault Weapons Ban, a measure sponsored and supported by left-wing Democrats. Both former Presidents Reagan and Ford also endorsed the Assault Weapons Ban shortly before the House vote, and two Republican congressmen who usually oppose gun control legislation, Henry Hyde and Bob Michael actually voted for the bill on the floor, thereby ensuring its passage by two votes. This alone ought to show that it is really the Republicans, the stupid party, perhaps even more than the Democrats, whom we have to thank for whatever successes the Clinton administration will enjoy in conquering both other nations as well as this one. Nor is the combination of a foreign policy of military interventionism and a domestic policy of disarming and pacifying the citizenry at home, perhaps as ironic

3:57or as paradoxical as it may seem at first. It is a combination that would not have surprised though it would have deeply alarmed the exponents of the tradition of political thought known today as classical republicanism, a tradition that exerted a profound influence on the eighteenth In the 19th century, Americans formed the American Republic. To a large extent, the combination of a militarily aggressive foreign policy with an internal policy of disarmament and pacification constituted the essence of tyranny to the classical Republicans as their thought developed in Great Britain and as it was transmitted to America in the generations before the Revolution. It was precisely to avoid and prevent the evolution of such tyranny The American Republicans established certain institutions and principles in the Constitution, the main one of course being the Second Amendment itself, under which the right of the people to keep and bear arms shall not be infringed.

5:00The legacy of the Classical Republicans is thus not only particularly relevant to Americans, but also has important implications for the meaning of what is happening in our own society Today, and what classical republicanism has to tell us about power and its strategy of social conquest is well worth examining. Classical republicanism refers to a body of thought that evolved in Western Europe and especially in Britain from the 16th through the 18th centuries, a body of thought that in modern times largely developed from the ideas of Niccolo Machiavelli and centered on various political movements in various countries aimed at restricting or doing away with the power of the dynastic monarchies that ruled in those states.

5:45If there was any defining principle to classical republicanism, it was its insistence on the restraint of power. And the favorite mechanism by which power was to be restrained was through what came to be called mixed government. Machiavelli followed classical writers such as Aristotle, Cicero and Polybius in grouping all forms of government into those of the three basic forms, monarchy, aristocracy and democracy. And Machiavelli, like some classical theorists, saw in a mixture of these pure forms the most effective means of ensuring political stability as well as of institutionalizing liberty. In this preference for mixed government, the classical Republicans challenged the prevailing Monarchies of Europe and England, and their theories played an important role in developing resistance to the Stuart Monarchy of the seventeenth century, eventually resulting in its overthrow in the English Civil Wars, the execution of Charles I, and the Republican experiments under the Commonwealth, and later the effective dictatorship of Oliver Cromwell. But the ideal of mixed government through Locke and Montesquieu also eventually came to influence the framers

6:58of Our Own Constitution, and it's the ultimate source of our own principle of the separation of powers under which executive, legislative and judicial functions check and balance each other. But while the original republican ideal of mixed government meant that no single social element of society should be dominant in the state, it also meant that all should actively participate in government and public life. In Machiavelli's theory, one of the most important forms of participation was service in the citizen's militia, and in his book, The Art of War, he developed the connection between the citizen and the soldier as links. Machiavelli is commonly faulted because he rejected the use of mercenaries and criticized reliance on artillery, and the use of both was indeed important in the rise of the absolute monarchies of that age.

7:54But Machiavelli's point was that he was not trying to develop an absolute monarchy, but a republic. And it was his constant teaching that the use of mercenaries and high-tech gadgetry like artillery was dangerous and corruptive to republics. They were dangerous because they placed independent military power in the hands of the state and those who controlled the state and allowed them to circumvent the restraints imposed by an armed people. And They were corruptive because reliance on professional soldiers and military technology meant that the people would have no reason to bear arms in their own defense. If they did not bear arms, they did not expect to have a share in public power and the whole concept of a republican mixed government and an active public life withered.

8:42Moreover, it was the heart of Machiavelli's theory that citizens who bore arms would necessarily retain the ethic of personal and political independence that would ensure the survival of the Republic. As historian J.G.A. Pocock puts it in recounting what he calls Machiavelli's Doctrine of Arms, the analysis of the art of war defines both the moral and the economic characteristics of the citizen warrior. In order to have a proper regard for the public of Good, he must have a home and an occupation of his own other than the camp. The mercenary soldier is a mere instrument in another man's hand, but the citizen warrior is more than an instrument in the public's hand, since his vertue is his own and he fights out of knowledge of what it is he fights for. But when a city ceased to use its own mercenaries in its armies and employed mercenaries, the citizens would be corrupted because they permitted Inferiors to do for them what should be done for the public good. The mercenaries would

9:47be agents of corruption because they performed a public function without regard for the public good. In other words, for Machiavelli and for almost all classical Republicans after him, it is the essential independence or autonomy of the citizen as citizen and as warrior that makes Republican life possible. The Republican citizen, unlike the passive subject of a of Monarchy took an active part in both war and government, and he was able to take an active part precisely because of his personal independence, economically, morally, politically and militarily. It was Machiavelli's emphasis on the role of arms in the civic life of the republic that accounts for the long classical republican tradition of popular militias, and in the Second Amendment of our own constitution, we find a descendant of Machiavelli's doctrine of Arms.

10:42Many of the framers of our Constitution and the Bill of Rights no doubt knew Machiavelli's works directly and could have gotten the idea of a citizen's militia from him immediately. But there was a good deal of intervening experience and political theory between Machiavelli in the late 18th century that reinforced his teaching. And it was mainly from the British experience in the late 17th and 18th centuries that American England Republicans drew their immediate lessons about a citizen's militia and what it meant for the preservation of political freedom. England had had a militia since Anglo-Saxon times, and throughout most of English history, the monarchs had actually encouraged and supported the militia on the reasoning that well-armed subjects were useful supports for internal peace and external defense. Beginning in the mid-seventeenth century, however, when various As the social reforms of the Stuart dynasty began to meet armed resistance from popular elements well-schooled in the use of weapons, the monarchy began a policy of trying to disarm the English people and to rely instead on a standing army.

11:52During the English Revolution of the 1640s, this policy of the Stuart monarchs was actually continued and enhanced by Oliver Cromwell and his military dictatorship, which relied on a standing army. After the restoration of the monarchy in 1660, King Charles II also sought to build up the military power of his government, and in fact this policy was part of a general transformation of the English state and society in that period. What was happening in England was essentially the creation of the modern state, with a monopoly of the means of violence and the financial resources to support the monopoly. In 1660 and approximately 1720, the monarchy developed and institutionalized a standing army and the bureaucratic machinery to tax and borrow sufficient money to finance it.

12:46And under William III, these state institutions were used for the explicit purposes of waging war on a global scale. But even under the last Stuart Keynes, Charles II and his brother James the Second, the same trends were apparent. In order for the state and the person of whatever king of whatever dynasty sat on the throne to transform the society to the point that it was possible for the state to raise money and wage war without internal resistance, it was necessary to disarm the heretofore very well-armed English people. The later stewards tried to do just that. The Militia Act of 1662 gave the officers of the militia appointed by the Crown the power to disarm any subject at the officer's discretion, a power unprecedented in English history. A few years later, in 1671, the first of a long series of laws known as the game laws was passed which actually forbade hunting by persons who lacked sufficient property.

13:48You had to have a property qualification in order to hunt. And which authorized the Confiscation of guns and other sporting equipment in the possession of people not qualified to hunt. Once the Catholic James II came to the throne in 1685, he conscious himself to disarm Irish Protestants and doubled the standing army that he had inherited from his brother, Charles II, the first standing army under the monarchy in English history. As the historian J.R. Western writes, there are signs that the disarming of the people for good was an and the integral part of the Crown's measures for destroying Whig powers of resistance. The disarming of the people was accompanied and intensified by the decline of the militia. Under James II, the militia was steadily superseded by the standing army.

14:36At the revolution of 1688, when the Catholic James II was overthrown and replaced by his Protestant son-in-law, William III, with the support of Whig and classical Republican factions, It was thought at first that William would recognize and restore the popular militia, but as it turned out he no more wanted an internal military force and independent of his own control than the Stuart Kings he had replaced. He refused to repeal the Militia Act and at the end of the Nine Years' War in 1697 he refused to demobilize the standing Army, now far, far larger than anything the later stewards had planned. It was his insistence on retaining a standing army, which soon was involved in yet another continental dynastic war, the War of the Spanish Succession, that led to the first explicit defense of a popular militia in English political thought by the classical republican pamphleteers John Trenchard and Walter Moyle. Trenchard and Moyle, along with other theorists, argued that the ancient The ancient constitution of England inherited from Anglo-Saxon times had been overthrown

15:47by the monarchs using mercenary soldiers, and that the way to restore the ancient constitution and the freedom that went with it was to rebuild the militia. They laid out rather elaborate plans by which all male freeholders were to join in the militia with each parish to provide its own stock of arms and ammunition. As historian Caroline Robbins describes the Republican and Discussion of Militia Reform, the emphasis was upon the danger to internal security from royal power rather than upon necessary protection against external attacks. Over and over again the connection between absolutism and mercenaries was pointed out, all deduced to the same moral, he that is armed is always master of the purse of him that is unarmed.

16:35In the event the classical republicans who urged militia reform and opposed the standing Army were defeated, in large part by the defection of what came to be known as the court whigs led by Lord John Summers who sided with the monarchy and used popular fear of Catholic absolutist France to justify a large standing army and all the paraphernalia of the modern state. But even though the supporters of the militia lost the political battle, there are, it seems to me, two significant implications of this episode of English history. One is is that the Whig and Classical Republican debate over militia reform had a profound effect on American colonists in the late 18th century, and it is largely from the works of such men as Trinchard and Moyle and their colleagues that the Americans formed their own theoretical ideas about owning and bearing arms and maintaining a citizen's militia.

17:29The second implication is that the state's attack on the militia and the effort to disarm and the English people was accompanied by the state's efforts to expand its military power and to use its power for external interventionism and war. The conjunction is not accidental. The English monarchs of any of whatever dynasty understood that they could not mobilize the financial resources for war from their subjects or indeed exercise political domination of their subjects at all if those subjects retained the means of military resistance. And therefore or the disarmament of the people through legal restrictions on the possession of guns was a constant theme of the early history of the modern state and modern imperialism. But despite the late 17th century efforts at disarmament, Englishmen did retain the right to bear arms and even confirmed and expanded that right in the course of the 18th century.

18:25In the Convention Parliament, summoned to sit at the time of the Revolution of 1688, The Whigs and Classical Republicans exerted influence on the English Bill of Rights that was adopted by the Convention, and one of these rights was that the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law. This was the direct ancestor of our own Second Amendment, and in fact the original language of the right was even more radical and asserted or implied an actual duty of subjects to keep The Recognition of the Right to Keep Arms in the English Bill of Rights was the foundation of this right in Great Britain down to the 20th century.

19:19Although the English Bill of Rights restricted the right to keep arms to Protestants, Roman When Catholics were legally forbidden only to store arms it could be used for rebellious purposes and they were explicitly assured of the right to keep arms for their personal defense in laws adopted in the 18th century. Moreover in 1692, 21 years after the passage of the game law restricting the right to bear arms, the law was amended so as to continue to protect game against hunting but not to restrict ownership or possession of firearms. The great English jurist of the 18th century, Sir William Blackstone, was emphatic about the right to keep arms and the central importance of that right to a free people. In his commentaries on the laws of England, after enumerating the rights of Englishmen, Blackstone writes, But in vain would these rights be declared, ascertained and protected by the dead letter of the laws, if the Constitution had provided no other method to secure their actual enjoyment.

20:19has therefore established certain other auxiliary rights of the subject which serve principally as outworks or barriers to protect and maintain and violate the three great and primary rights of personal security, personal liberty and private property. There were five such auxiliary rights in Blackstone's view. The fifth and last right of the subject being that of having arms for their defense, suitable People to their condition and degree, and such as are allowed by law, and indeed a public allowance under view of restrictions of the natural right of resistance and self-preservation when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

21:07Despite the qualifying language Blackstone used about the right to keep arms, his view also deeply influenced the American framers who took a less qualified and indeed more or egalitarian view of who might keep arms, regardless of what was suitable to their condition and degree. But in fact, there was in Great Britain throughout the 18th and 19th centuries very little dispute about the right to keep arms. The only exception was an act passed in 1819 as one of what came to be called the Six Acts, which were six laws enacted in the wake of the Napoleonic Wars to control internal security. One of these, known as the Seizure of Arms Act, allowed for the magistrates to seize weapons from subjects under certain circumstances. But it is notable that even the government spokesman, Lord Castle Ray, who sponsored the Seizure of Arms Act in the House of Commons, acknowledged that it violated the constitutional right to keep arms.

22:00Castle Ray stated, the principle of the bill was not congenial with the Constitution, that it was an infringement upon the rights and duties of the people, and that it could only may be defended upon the necessity of the case. Despite strenuous opposition, it passed, but only because it was supposed to expire in two years, which it did. From that time until a century later, there was virtually no serious attempt to enact gun control in England, and certainly no successful attempt. And Lord Macaulay, the historian in the middle of the nineteenth century, defended the right to keep arms as the security without which Every other is insufficient. Toward the end of the 19th century, there were certain laws adopted that imposed minor legal restrictions on the right to keep arms.

22:46In 1870, there was a Gun License Act that required those who wanted to carry firearms out of doors to buy a 10-sholling license at the post office. It was intended simply as a revenue measure. In 1893 and 95, the House of Commons considered more rigorous pistol control bills, but rejected In 1923, the Commons passed a Pistols Act that prohibited the sale of pistols to miners and felons. But as late as 1920, the British people enjoyed virtually as much right to own, buy, sell, keep and bear firearms as Americans did. In 1920, however, the coalition government of Lloyd George introduced what the King known is the Firearms Control Act, which effectively repealed the right to bear arms by requiring a certificate for anyone wishing to purchase, possess, use or carry any description of firearm or ammunition for the weapon. The local chief of police was supposed to decide who was and who was not to have firearms and could exclude anyone based on intemperate habits, unsound

24:01The applicant had to convince the police that he had a good reason for acquiring such a certificate, and the government spokesman in the House of Lords conceded that good reason would be determined by practice. In other words, that good reason would mean what the Under the bill, Englishmen could repeal refusal of a certificate to a court, but Irishmen were explicitly denied such a right of appeal. While the 1819 seizure of arms act, introduced in an undemocratic House of Commons in a period of severe social instability and revolutionary activity, was met with strong opposition, the Firearms Control Act of 1920 encountered little resistance.

24:55One member of the Commons, the Colonel Kenworthy, did object, and pointed out that the right to keep arms had been important historically, if only in order to keep and acquire other political rights that all Englishmen now enjoy, precisely because keeping arms enabled the people to resist the state. He was at once denounced by Major Winterton, who sneered that his colleagues' idea is that the state is an aggressive body, which is endeavoring and to deprive the private individual of the weapons which heaven has given into his hands to fight against the state. There are other people who hold those views in this country and it is because of the existence of people of that type that the government has introduced this bill. Apparently the government of 1920 would have considered that it had every reason to seize the weapons found on the persons or in the homes of John Trinchard, William and Blackstone and Lord Macaulay and other people of that type, who had explicitly defended

25:56the right to keep arms precisely as a security against the state. But in fact, Major Winterton was probably right. The main reason for the bill seems to have been fear of the Bolshevik Revolution by the government, even though the official reason offered by the government was that armed crime had increased. In fact, in the years 1915 to 1917, the average number of crimes in which firearms were used fell from 45 to 15. Not only Bolshevism, but also labor unrest as well as Irish violence may have contributed to the decision of the government to sponsor this bill. And it is significant that this gun control measure, too, like those of the late 17th century, was driven not by a desire to curb crime, but by a fear of popular resistance. In other words, by fear of the government's own people and of the very thing the right to keep arms was intended to ensure.

26:49But what is also significant is that the 1920 bill passed in the House of Commons by a vote of 254 to 6. Thus, by an overwhelming majority, did the British Parliament toss away a fundamental right, the defense of which had helped inspire the Revolution of 1688 and which had been defended as central to English liberty by the country's greatest jurists and one of of its Foremost Historians. As Major Wenerton's stupid remarks make clear, by the time of the debate on the Firearms Control Act, the English ruling class had totally forgotten what the right to keep arms meant, how it had developed, or why it was important. And there is no evidence to this day that Englishmen understand it any better now than they did when they stripped themselves of the right to keep arms in 1920.

27:43The Act has been progressively toughened several times, each time with little objection, and today The Economist magazine loves to publish spatially inaccurate editorials sneering at the backward Americans' insistence on their Second Amendment rights. The editorials are as inaccurate in their understanding of contemporary America as they are ignorant of their own country's history. The immediate reason for the British government's desire to pass gun control and abolish the and the Rights of Englishmen to Keep Arms may have been feared by revolution and unrest. But in a larger sense, the passage of the 1920 Act was certainly related to the major enlargement of state power that was then beginning in Great Britain and the United States, where the first Federal Firearms Act was passed in 1934 under the Roosevelt administration.

28:33I do not suggest that either the British or the American governments consciously sought What I do say is that the curtailment of the right to bear arms makes perfect sense in a society in which statism has triumphed, in which the central state, as opposed to the people who compose it, is the real source of authority, and that it makes no sense at all for such a society to permit or recognize a right to keep arms on the part of the subjects Those classical Republicans who first expressed and defended a right to keep arms understood that the kind of society they envisioned would be one in which authority came from the bottom up, that the democratic element of the mixed constitution, often in league with the aristocratic element, would, through the right to keep arms, prevent the state from transgressing on liberty, property and personal property.

29:35It can hardly be surprising that a society that has forgotten the teaching of classical republicanism, that personal and social independence is the precondition of free government, has also forgotten the meaning of the right to keep arms, which it so gaily pitches away, and the integral relationship of that right to the very nature of a self-governing republic. The alternative to the kind of mixed regime the classical republicans supported is precisely In the Republic, as the classical theorist conceived it, as in the American Republic that owes so much to that conception, the authority of the state is supposed to come from the people, from the social elements of which the mixed constitution is composed.

30:30And so it is the state that must persuade us, the citizens, and prove things to us, whether to enact a law that criminalizes otherwise law abiding gun owners, or to go to war in Rwanda this week. In the autocracy envisioned by James II and William III, not to mention their spiritual descendants in the shapes of Lloyd George and John Major, George Bush and Bill Clinton, and in the bipartisan monument to stupidity and evil they have constructed in the form of a therapeutic state. It is the citizen who must convince the state that he should be allowed to have a gun, and the state and its agents may deny his plea for whatever it considers to be good reason. What is involved in the current trades for gun control then is a bit more than just a drive for law and order or crackdown on hunters It is implicitly a revolution in our fundamental conception of the state, an implicit transformation of the American Republic from its republican character to an essentially autocratic character.

31:35Because the right to keep and bear arms, either as a militia or as individuals, is an essential characteristic of a republic and a free people. It is meaningless to say that we have a republic unless we also have the right to keep arms, Since the capacity of the people to protect and defend themselves against criminals, foreign aggressors, and their own government is also a condition of their capacity to rule themselves and to prevent others from ruling them, and the denial of a right to keep arms is equally characteristic of an autocracy and of a people that is essentially enslaved, regardless of how much money it makes or how often it votes, because a people stripped of the capacity to protect and defend themselves is certainly not the stuff of which a res publica is made.

32:23And indeed, it is hardly even a people.