That Every Man Be Armed: The Evolution of a Constitutional Right, Revised and Updated Edition

338 Pages·2013·2.21 MB·English

by  Stephen P. Halbrook

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LAW • LEGAL HISTORY
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hat Every Man Be Armed—the first scholarly book on the Second that every man be
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Amendment to the U.S. Constitution, originally published in 1984—
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has played a significant role in constitutional debate and litigation in 4 A RMED 4
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the succeeding quarter century. The author traces the philosophical concept of the 4 4
right to bear arms from ancient Greece and Rome to the English writers of the sev- O 4 4
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enteenth and eighteenth centuries whose ideas shaped the American Constitution. K
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This new edition includes a preface and epilogue that review recent literature on the
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Second Amendment and trace the relevant court decisions. That Every Man Be Armed ✯ 4 4

remains the most comprehensive general work on the right to keep and bear arms. 4 the evolution of a 4
“Aimed not simply at law scholars or students, but at every citizen who is inter- T 4 4
constitutional right
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ested in discovering why the issue of gun control is a volatile one, and why the right
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to carry and bear arms is too ingrained in our society and government for a simple
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revised and updated edition
solution to be found.” —Constitutional Law t 4 4

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“Informs, challenges, and should change people’s understanding of the Second v
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Amendment and of past and present policy debates. . . . Whether one wants more e
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laws restricting guns, fewer restrictions on gun rights, or legal and historical evi-
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dence about what the Second Amendment really means, the book will provide new 4 4

facts and insights.” —Constitutional Commentary M 4 4
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“Strikes directly at the heart of the controversy. . . . [T]he value of Mr. Halbrook’s work n
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lies not in the answers it provides, but in the serious constitutional questions raised.” B 4 4
—Gonzaga Law Review 4 4
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Among Stephen P. Halbrook’s other books are The Founders’ Second Amendment and 4 4
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The Swiss and the Nazis. He is an attorney in Fairfax, Virginia.
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ISBN 978-0-8263-5298-9 H A LBROOK
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University of New Mexico Press
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unmpress.com 800-249-7737
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cover design: Catherine Leonardo
that every man be armed

that every man be
ARMED
✯

the evolution of a

constitutional right

revised and updated edition
✯
.
stephen p
H ALBROOK
university of new mexico press
Albuquerque
© 2013 by the University of New Mexico Press
All rights reserved. First edition 1984.
Revised and updated edition 2013.
Printed in the United States of America
18 17 16 15 14 13 1 2 3 4 5 6
Portions of this book have previously appeared as follows: “The Jurisprudence of the Second and
Fourteenth Amendments,” George Mason University Law Review 4 (1981): 1–69; “The Fourteenth
Amendment and the Right to Keep and Bear Arms: The Intent of the Framers,” Report of the
Subcommittee on the Constitution, Committee on the Judiciary, The Right to Keep and Bear
Arms, U.S. Senate, 97th Cong., 2d Sess. (1982): 68–82; “To Keep and Bear Their Private Arms:
The Adoption of the Second Amendment, 1787–1791,” Northern Kentucky Law Review 10 (1982):
13–39; and “Tort Liability for the Manufacture, Sale and Ownership of Handguns?” Hamline Law
Review 6 (1983): 351–82.
Library of Congress Cataloging-in-Publication Data
Halbrook, Stephen P.
That every man be armed : the evolution of a constitutional right / Stephen P. Halbrook. —
Revised and updated edition.
pages cm
Includes bibliographical references and index.
ISBN 978-0-8263-5298-9 (pbk. : alk. paper) — ISBN 978-0-8263-5299-6 (electronic)
1. Firearms—Law and legislation—United States. I. Title.
KF3941.H35 2013
344.7305’33—dc23
2012032327
design and composition: Catherine Leonardo
Composed in 10.75/14 Adobe Garamond Pro
Display type is ITC Century Std
The great object is, that every man be armed.
—Patrick Henry, 1788
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.
—Second Amendment, U.S. Constitution
No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.
—from the Fourteenth Amendment

CONTENTS
✯
Preface to the Revised and Updated Edition ix
Preface to the Original Edition xv
Introduction: Firearms Prohibition and Constitutional Rights xix
CHAPTER 1 THE ELEMENTARY BOOKS OF PUBLIC RIGHT 1
The Citizen as Arms Bearer in Greek Polity: Plato and Aristotle 3
From Republic to Empire in Rome: Cicero Versus Caesar 10
Machiavellian Interlude: Freedom and the Popular Militia 17
Absolutism Versus Republicanism in the Seventeenth Century 22
Arms, Militia, and Penal Reform in Eighteenth-Century Liberal Thought 30
CHAPTER 2 THE COMMON LAW OF ENGLAND 35
The Tradition of the Armed Freeman 36
Gun Control Laws of the Absolute Monarchs 39
That Subjects May Have Arms for Their Defense: The Glorious Revolution
and Bill of Rights 43
The Common-Law Liberty to Have Arms: From Coke to Blackstone 49
CHAPTER 3 THE AMERICAN REVOLUTION AND THE
SECOND AMENDMENT 57
Poore, Endebted, Discontented, and Armed: Bacon’s Rebellion of 1676 58
The American Revolution: Armed Citizens Against a Standing Army 60
The Controversy over Ratification of the Constitution 70
The Federalist Promise: To Trust the People with Arms 71
To Keep and Bear Their Private Arms: The Adoption of the Bill of Rights 82
vii
viii CONTENTS
CHAPTER 4 ANTEBELLUM INTERPRETATIONS 96
Judicial Commentaries: The Armed Citizen as the Palladium of Liberty 97
Carrying Weapons Concealed: The Only Right Questioned in Early
State Cases 101
The Disarmed Slave and the Dred Scott Dilemma 105
That “the People” Means All Humans: Abolitionist Origins of the Fourteenth
Amendment 108
CHAPTER 5 FREEDMEN, FIREARMS, AND THE
FOURTEENTH AMENDMENT 117
That No State Shall Disarm a Freedman: The Proposal of the Fourteenth
Amendment 118
The Public Understanding and State Ratifications of the Fourteenth
Amendment 127
The Impact of the Fourteenth Amendment upon State Constitutions 137
That No Militia Shall Disarm a Freedman: The Abolition of the Southern
Militia Organizations, 1866–1869 150
Against Deprivation Under Color of State Law of the Right to Keep and Bear
Arms: The Civil Rights Acts of 1871 and 1875 159
CHAPTER 6 THE SUPREME COURT SPEAKS 173
Post-Reconstruction Decisions 174
The Right to Keep and Bear Militia Arms: United States v. Miller (1939) 184
The Logic of Incorporation and the Fundamental Character of the Right
to Keep and Bear Arms 191
CHAPTER 7 STATE AND FEDERAL JUDICIAL DECISIONS 202
The Pistol as a Protected Arm 202
State Court Decisions Since World War II 208
To Disarm Felons or to Disarm Citizens? Federal Court Decisions
from 1940 212
Afterword: Public Policy and the Right to Keep and Bear Arms 219
Update to New Edition 225
Notes 233
Index 301
PREFACE TO THE REVISED
AND UPDATED EDITION
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his book was originally published the same year as the title of the
novel 1984, an epoch when the Second Amendment was mired in
Orwellian Doublespeak in polite academic and judicial society.
The plain words “the right of the people to keep and bear arms, shall not be
infringed” had been turned upside down: “the people” meant a State or the
National Guard, their “right” referred to a governmental power, to “keep”
arms did not mean to possess them, to “bear arms” meant the performance
of military duty, and “infringed” referred to something that the federal gov-
ernment may not do to the States.
Instead of a populace in possession of and familiar with arms contrib-
uting to a “well regulated militia,” which is “necessary to the security of a
free state,” the militia clause of the amendment somehow meant that no
individual had a right to keep and bear arms at all. An elite which always
favored federal over State powers and was never enamored with the
National Guard—the ultimate symbol of which was the tragic shooting
of students at Kent State University during the Vietnam War—became
guardian angels of that suddenly oh-so-important “collective right” of
States to maintain militias.
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