For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms

By Clayton E. Cramer | Go to book overview

FOREWORD

He who decides a case without hearing the other side. . .
though he decides justly, cannot be considered just.
( Seneca)

I write to commend this book by Clayton Cramer to the widest possible audience, the educated citizenry of a democratic republic whose very integrity depends upon fair and informed hearings of its divisive controversies. The educated citizen has two interests in this book, both of which are also obligations for those who would be considered just.

First and foremost, we have a common interest in moral integrity and accountability. We must give account of the rights and liberties we claim for ourselves and against others. This is most fundamentally a moral, not a political or legalistic, matter. It is not a matter of "might" making "right" through due legal or political process, of playing by the rules of legal or political contest. Moral right is not a matter of contests of power, of who wins in court, who wins the votes, or who turns out, today, to have the referees of constitutional contests on their side. To be considered just, we may not simply decide an issue by due process; we must also be sure to hear the other side.

So, when it comes to the most hotly contested claim rights in our public controversies (such as the "right" to abort, the "right" to die with dignity, the "right" to adequate health care, etc.), a just people cannot hide behind constitutional, judicial or political victories. Our moral obligation to hear the other side and to give account of our claims against others remains paramount, regardless of who wins in the legal or political arena. Any fundamental claim right requires a fair and careful hearing from us all, as moral agents, regardless of how the claim is privileged or prejudiced by judicial interpretation. Our moral integrity and the justness of our public policy are not ensured by conformity to the law of the land, however that may be interpreted at the moment even in our highest courts. Nonetheless, a study of the higher law of the land, its origin and evolution, is dramatically instructive to moral inquiry, for it reveals in high relief the varied complexion and complexity of human interests whose contest we need justly hear and resolve, from the moral as well as the legal point of view.

Therefore, first and foremost, I commend this book as a vehicle for moral inquiry into our essentially contested civil rights and liberties. Perhaps none of these is so intractably disputed as the right to keep and bear arms, despite its indisputable

-vii-

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For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Foreword vii
  • Preface xiii
  • Acknowledgment xvii
  • I. Definitions 1
  • II. European Origins 19
  • III. The Legislative History of the Second Amendment 31
  • IV. Problems of Judicial Interpretation 63
  • V. "To Keep and Carry Arms Wherever They Went" 69
  • VI. "No Negro. . . Shall Be Allowed to Carry Fire-Arms" 97
  • VII. "Carrying Concealed Weapons is a Grievous Evil" 141
  • VIII. "A Proper Reason for Carrying a Pistol" 165
  • IX. Civil Rights, Civil Disturbances 197
  • X. The Right Comes Out of Its Coma? 221
  • XI. At the Crossroads 269
  • Selected Bibliography 275
  • Index 281
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