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

II. EUROPEAN ORIGINS

Stephen Halbrook argues that the tradition of a right to keep and bear arms has its roots in the classical world.1 Because of space limitations, this work makes no attempt at evaluating the claims concerning classical civilization and the right to keep and bear arms.

Like many other civilizations founded on warfare, the Germanic tribes that overran and supplanted the Roman Empire considered that "arms bearing was a right and a duty of free men." Not surprisingly, the Anglo-Saxon culture that developed in Britain continued this tradition of bearing arms in military service.2 However, the obligation of free men for military duty is not necessarily evidence of an individual right; many nations today have an obligation to military duty, without recognizing any individual right to possess arms. A nation may also provide for the widespread possession of arms as a military necessity, but without recognizing an individual right. An example of arms bearing as a narrowly granted privilege (not a right) can be found in the fourteenth century regulations of France, which prohibited the carrying of offensive weapons by the nobility, but allowed the carrying of defensive arms (if so licensed by the king). Mundy mentions an architect employed by the city of Orvieto who was given "a noble's right to bear arms," again suggesting the limited nature of this right.3

Perhaps the best example of this is Niccolo Machiavelli's writings on the need for an armed populace. Machiavelli held that arms in the hands of the citizens would act as a defense from external oppression, and from internal tyranny.4 But Machiavelli's writings are pragmatic, not utopian. This statement is not necessarily evidence that Machiavelli considered widespread arms ownership an ideal, merely a statement of what would happen if a prince relied on military force to maintain his position.

____________________
1
Stephen P. Halbrook, That Every Man Be Armed, ( University of New Mexico Press, 1984; reprinted Oakland, Calif.: The Independent Institute, 1984), 9-20.
2
Hardy, 45. Christopher Brooke, Europe in the Central Middle Ages: 962-1154, 2nd ed., ( New York: Longman Group, 1987), 183. Richard W. Kaeuper, War, Justice, and Public Order: England and France in the Later Middle Ages, ( Oxford: Clarendon Press, 1988), 17.
3
Kaeuper, 244-5. John H. Mundy, Europe in the High Middle Ages: 1150-1309, 2nd ed., ( New York: Longman Group, 1991), 94.
4
Niccolo Machiavelli, Discourses 2:24, in Machiavelli: The Chief Works And Others, transl. Allan Gilbert , ( Durham, N.C.: Duke University Press, 1965), 392-3.

-19-

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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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