Now that we have established that the historical purpose and intention of the 2nd Amendment was that of self-defense (Part 1), we will analyze the foundation of the Constitution, the Bill of Rights, and the 2nd Amendment; The Declaration of Independence.
The right of self-defense can be traced back to the earliest recorded human history. The justification for this right is the simple notion that any rational being, no matter what culture he lives or upon what tradition he draws, will conclude that if is acceptable to defend himself when his life is in danger. No civil law is needed to help us understand this. As Roman philosopher and statesman Marcus Tullius Cicero posits:
[This] is a law . . . not written, but born with us,–which we have not learnt, or received by tradition, or read, but which we have taken and sucked in and imbibed from nature herself; a law which we were not taught, but to which we were made,–which we were not trained in, but which is ingrained in us,–namely, that if our life be in danger from plots, or from open violence, or from the weapons of robbers or enemies, every means of securing our safety is honourable.
Thus Natural Law is the foundation of this right of self-defense.
In its opening paragraph, the Declaration of Independence appeals to “the Laws of Nature and of Nature’s God,” or, as we will refer to it, Natural Law. The Founders viewed Natural Law as the highest order of law. In his De re publica (On the Republic), Cicero defines this concept of Natural Law:
True law is right reason in agreement with nature; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly called punishment . . .” (emphasis mine).
To simplify Cicero’s definition of Natural Law we will break this statement down into a few primary components:
- Natural Law is foundational and universal. Natural Law is not derived from any other laws; rather, it consists of directives that ought to be easily understood by all.
- Natural Law is a regulation of reason. Every rational individual can formulate the dictates of Natural Law. Instinct is just the beginning, rationalization is a necessary next step toward the formulation of the understanding of Natural Law. Thus it is distinguishable from mere animal instinct and unique to the human species.
- Natural Law is a commanding. It directs the rational human mind and imposes moral obligations to do or to abstain from doing.
Natural Law According to The Romans
One of the first Natural Law thinkers that typically comes to mind is Saint Thomas Aquinas, and for good reason. But Natural Law philosophy goes back far beyond Aquinas. The Greek Stoics and Aristotle were the first to contemplate the truths of Natural Law, which influenced the Roman jurists and Cicero. After that, Justinian the Great (or Justinian I) began outlining a jus gentium or “law of nations”:
Those rules which a state enacts for its own members are peculiar to itself, and are called civil law: those rules prescribed by natural reason for all men are observed by all peoples alike, and are called the law of nations.
These early Natural Law theorists relied heavily on empirical observations but their ideas were still important. One very solidly established commonality was the idea that human reason was an essential aspect of Natural Law. And one of the earliest reasonable conclusion at which they arrived was the inherent nature of the right of self-defense. Cicero’s defense of Milo on the charge of murder is perhaps his most famous discourse. He based his case of self-defense firmly on the principle of Natural Law as opposed to any contemporary or historical civil statutes.
As logical as their conclusions were, the Achilles’ heel of the Roman understanding of Natural Law was their empirical observation. Often Natural Law would be used to justify very immoral ends, as was the case with Cicero’s defense of Milo. Milo was a low-life street thug whose violent crimes were indeed unlawful and immoral. The result was an concept of Natural Law that illustrated the effect but failed to explain the moral foundational cause.
Natural Law According to Saint Thomas Aquinas
When Thomas Aquinas appeared onto the Natural Law scene, he brought with him the solid moral foundation of the Christian Bible upon which he restructured the ideas of the Roman Natural Law philosophers. Embedded within his Summa Theologica was a “Treatise on Law,” in which Aquinas argued that, “The natural law is promulgated by the very fact that God instilled it into man’s mind so as to be known by him naturally.” Cicero falls just shy of this understand, and Plato and Aristotle were even farther away
Aquinas posits that reason exists in two forms, speculative and practical. Then he explains that:
“[G]ood” is the first thing that falls under the apprehension of the practical reason, which is directed to action: since every agent acts for an end under the aspect of good. Consequently the first principle of practical reason is one founded on the notion of good, viz. that “good is that which all things seek after.” Hence this is the first precept of law, that “good is to be done and pursued, and evil is to be avoided.” All other precepts of the natural law are based upon this: so that whatever the practical reason naturally apprehends as man’s good (or evil) belongs to the precepts of the natural law as something to be done or avoided.
In other words, good is good and evil is not good, so abstain from evil and do good. And in order to apply this reasonable conclusion, one must establish those things which are accepted by all men as “good”.
Aquinas suggests that “all those things to which man has a natural inclination, are naturally apprehended by reason as being good.” With that basis, Aquinas states that:
[I]n man there is first of all an inclination to good in accordance with the nature which he has in common with all substances: inasmuch as every substance seeks the preservation of its own being, according to its nature: and by reason of this inclination, whatever is a means of preserving human life, and of warding off its obstacles, belongs to the natural law (emphasis added).
If this seems simple, that’s because it is. That’s the whole point of Natural Law. Every individual processes a strong predisposition to the preservation of his own life. The compelling feeling known as “fight or flight” is Natural Law in action. Thus, the very essence of self-defense comes from the Natural Law. This, I believe, is echoed as the foundation for the Declaration of Independence, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life. . . .”
To establish the superiority of the Natural Law Aquinas argues that, “every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.” This is similar to Cicero’s position which we quoted earlier, “It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely.”
Self-Defense According to Saint Thomas Aquinas
So far, Aquinas’ argument goes a little something like this:
- Premise 1: The Natural Law is a command to protect the good.
- Premise 2: Self-preservation is the highest for of good.
- Conclusion: Therefore, self-defense is justified.
And not only is it justified, but Aquinas goes one step farther and considers it to be moral. “[M]oral acts take the species according to what is intended, and not according to what is beside the intention.”
This idea of intention is vitally important to Aquinas’ Natural Law under standing of self-defense. In a self-defense killing, the intent is not to kill. Rather, the intent is to preserve one’s own life, and the killing is the only way to do so.
Self-Defense According to Other Natural Law Thinkers
In 1625, Hugo Grotius, a jurist in the Dutch Republic, wrote his De jure belli ac pacis, “On the Law of War and Peace,” in which he uses Natural Law as the basis of self-defense, “Now right reason and the nature of society which claims the second, and indeed more important place in this inquiry, prohibit not all force, but only that which is repugnant to society, by depriving another of his right.” And he ultimately concludes that defending one’s life and property is a “private war [which] may be considered as an instantaneous exercise of natural right.”
In 1651, political philosopher Thomas Hobbes presented his doctrine of the foundation of governments in his Leviathan or The Matter, Forme and Power of a Common Wealth Ecclesiasticall and Civil. In it, Hobbes suggests that “If a man by the terrour of present death, be compelled to doe a face against the Law, he is totally Excused; because no Law can oblige a man to abandon his own preservation.” Hobbes also argues that if a government were to make self-defense illegal, it would not prevent its citizens from relying on it: “supposing such a Law were obligatory; yet a man would reason thus, If I doe it not, I die presently; if I doe it, I doe afterward; therefore by doing it, there is time of life gained.”
William Blackstone, English jurist, judge and politician of the late 1700s, was most known for writing the Commentaries on the Laws of England, which was the legal textbook, of sorts, for the Founders. Blackstone was a proponent of the Natural Law right of self-defense. Blackstone called the right to self-defense “the primary law of nature, so it is not, neither can it be . . . , taken away by the law of society.”
A favorite Natural Law philosopher of the Founders’ was John Locke. It was from Locke that the idea of tabula rasa, “government with the consent of the governed” was derived, and most scholars trace the phrase “life, liberty, and the pursuit of happiness” to Locke’s theory of rights.
In regard to self-defense, he stated:
And thus it is that every man in the state of Nature has a power to kill a murderer, both to deter others from doing the like injury (which no reparation can compensate) by the example of the punishment that attends it from everybody, and also to secure men from the attempts of a criminal who, having renounced reason, the common rule and measure God hath given to mankind, hath, by the unjust violence and slaughter he hath committed upon one, declared war against all mankind, and therefore may be destroyed as a lion or a tiger, one of those wild savage beasts with whom men can have no society nor security. And upon this is grounded that great law of nature, “Whoso sheddeth man′s blood, by man shall his blood be shed.” And Cain was so fully convinced that every one had a right to destroy such a criminal, that, after the murder of his brother, he cries out, “Every one that findeth me shall slay me,” so plain was it writ in the hearts of all mankind.
Interestingly, Locke connected this idea of Natural Law back to the Old Testament and the Noahide Law. We will pursue this connection next week.
It it my hope that I have been able to make a clear connection between Natural Law and self-defense. I would be very interested to hear from any pacifists out there that take a contrary position. Is there a Natural Law case for pacifism?