Category Archives: 2nd Amendment

The 2nd Amendment and The Bible: A Historical and Theological Look at the Natural Right of Self-Defense, Part 2

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.

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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:

  1. 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.
  2. 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.
  3. 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?

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The 2nd Amendment and The Bible: A Historical and Theological Look at the Natural Right of Self-Defense, Part 1

With all the recent talk about gun violence and the 2nd Amendment, the question that many Christians are asking is, “Does the Bible have anything to say about all of this?” This series is my attempt to answer that question. I hope it helps you answer that question and encourages healthy dialogue.

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Clinging to guns and religion?

Allow me to first precede my statements by saying that I have spent a good deal of time over the past few months researching the information I will be presenting. My goal was to find an honest answer to the question of where a Christian ought to stand on the issue of gun control. With that as my guiding desire, as I researched, I tried to approach the question with as few biases as possible. That being said, if anyone finds any flaws in my logic, please, by all means, feel free to bring them to my attention in the comments section below.

This week, we will look at the Historical Context of the 2nd Amendment.

I begin with the premise that the Constitution was written on the contextual foundation of the principles and ideals of the Declaration of Independence. The foundational premise of the Declaration of Independence is of course:

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, Liberty and the pursuit of Happiness.

Thus the Bill of Rights could be considered a list of laws that secure the God-given, unalienable Rights of Life, Liberty and the pursuit of Happiness (or property).

With that in mind, let’s examine the Second Amendment itself. The text of the Second Amendment states:

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.

It is important to note that the Second Amendment did not grant the right to keep and bear arms. That right existed prior to the writing of the Bill of Rights as is implied in the text. The amendment clearly states that the right to keep and bear arms “shall not be infringed.” There is no establishing of this right, the right is already there, thus the 2nd amendment is, again, a law that secures a right that already exists.

It is often argued that the historical context of the Second Amendment — namely the Revolutionary War period and the establishment of a new nation, one without a standing army — negates the validity of the Second Amendment today. Second Amendment opponents claim that because the U.S. has an Army, Navy, Air Force and Marine Corps, and because state and local governments provide a National Guard, a Coast Guard, and state and local police forces who are all supplied with firearms by their respective governments that employ them, the necessity of a “well regulated militia” has been met and the right to keep and bear arms does not apply to individuals. That argument, however, completely ignores other historical contexts surrounding the Second Amendment.

In his popular edition of Blackstone’s Commentaries on the Laws of England (1803), St. George Tucker, a lawyer, Revolutionary War militia officer, legal scholar, and later a U.S. District Court judge (appointed by James Madison in 1813), wrote of the Second Amendment:

The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government.

In the appendix to the Commentaries, Tucker elaborates further:

This may be considered as the true palladium of liberty… The right of self- defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction (emphasis mine). In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty (emphasis mine).

Tucker’s words offer pretty solid historical context that proves that the so-called “militia clause” was not intended to limit this amendment to militia members. His use of the phrase “The right of self-defense…” in the appendix shows the proper understanding of the Founders. Self-defense and national defense are clearly contrasted here.

Also, Tucker’s reference to “the first law of nature” confirms that the Founders saw the 2nd amendment and the right to self-defense as a God-given, natural right.

In his work, “A View of the Constitution of the United States of America” (1829), which became a constitutional law textbook at West Point and other institutions, U.S. Attorney for Pennsylvania, William Rawle, describes the scope of the Second Amendment’s right to keep and bear arms:

The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.

Seems pretty straightforward. Neither a state nor the federal government has any constitutional authority to disarm its citizens. If the Army training facility’s textbook on constitutional law takes the position that the government cannot disarm the people, the argument that the Second amendment is negated by the existence of a standing army is completely fallacious!

A personal favorite, Justice Joseph Story (my home county is named for him), who was appointed to the Supreme Court as an Associate Justice by James Madison in 1811, wrote a constitutional commentary in 1833. In his comments on the Second Amendment, he writes:

The next amendment is: “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.”
The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

The Supreme Court of Tennessee summed it up best in Andrews v. State (1871) when they stated that:

[T]his passage from Story, shows clearly that this right was intended, as we have maintained in this opinion, and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights.

Justice Story would have lamented the fact that we now have a large military establishment and would likely be sounding the alarm against tyranny and the alienation of our unalienable Rights. And I can’t say that I disagree with his logic or his conclusion.

Another of the ideologies in the Declaration of Independence that made these United States possible was the understanding that “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it”. Upon this revelation Alexander Hamilton bases the idea that the right to self-defense is the “original right” in Federalist Paper No. 28:

If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair (emphasis mine).

We can conclude, based upon the historical evidence, that the Founders thought that this “original right” was necessary for the securing of the God-given “unalienable rights” listed in the Declaration of Independence. In order to enjoy the rights of Life, Liberty and the Pursuit of Happiness, we must be able to secure and defend those rights. Thus the right to defend one’s self is central to the philosophy of the Founders and the 2nd Amendment and directly connected to the idea that these rights are apart of Natural Law.

Another beneficial aid to interpreting the Bill of Rights are the various state constitutions that were written contemporaneously. These documents are especially insightful when in comes to the Second Amendment on numerous levels. Provisions for the right to bear arms are contained in 44 of the 50 state constitutions, making the Second Amendment one of the most reiterated right of the Bill of Rights. And often, the language used in the state constitutions is less ambiguous, giving us a clear understanding of the thought behind the Second Amendment and the right to bear arms.

The present-day Pennsylvania Constitution, using language adopted in 1790, declares in article 1, section 21:

The right of the citizens to bear arms in defence of themselves and the State shall not be questioned.

Compare that to Pennsylvania’s first constitution, adopted in 1776, stated in its Declaration of Rights:

That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power.

Adopted in 1777, the Vermont Constitution closely resembles the Pennsylvania Constitution. It states:

That the people have a right to bear arms for the defence of themselves and the State — and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power.

Based upon this historical look we can reasonably conclude that the 2nd amendment was of vital importance to the framers of the Constitution and that it was originally about individual self-defense.

Next week, we will look beyond the Founders at the Natural Law context of the 2nd Amendment and self-defense in order to better understand where and how the concept of the 2nd Amendment was derived.