at first a mainstay of american political thought, then disparaged, and suffering the final indignity of being virtually ignored, the seemingly moribund doctrine of natural law has found new, revitalizing and clear enunciation at the quill pen of justice antonin scalia. natural law, as manifested in the notion that each person retains the inherent right of self defense and self preservation, now lives vibrantly strong and vigorous in the second amendment of the united states constitution, as a bulwark and philosophical foundation to the right to keep and bear arms asserted there, thanks to the supreme court’s 5-4 decision in d.c. v. heller, 554 u.s. ___(2008), docket no.: 07-290, issued june 26, 2008. in justice scalia natural law has found a clear, cogent and convincing advocate, at once articulate and forceful in explaining the origins of this thought in our political system, and its continuing relevancy and vitality at home in the second amendment.
this decision is sweet vindication for me, because i believe that natural law theories of self defense provide a cogent rationale for the individual who asserts a right to defend himself against the attack of islamic jihad upon the citizenry of this country, and who might have to defend himself in a court of law for doing so.
i have written extensively on natural law in these pages, and how natural law doctrines provide a framework and an intellectual rational for a person to defend himself from islam, especially if his sovereign will not or cannot protect him. i would encourage you to read these articles again, or for the first time, as they provide a foundation for the views i am going to propound after a discussion of the supreme court case at hand, d.c. v. heller. i warn you, these posts are not intended for the casual reader, you have to put some attention into it, but they will give you a very firm foundation in the language of the case that i am going to lay out for you:
http://wintersoldier2008.typepad.com/summer_patriot_winter_sol/2008/04/sir-william-bla.html
(“sir william blackstone and natural law”)
http://wintersoldier2008.typepad.com/summer_patriot_winter_sol/2008/04/blackstones-com.html
(“blackstone’s commentaries on the laws of england: the rights of men”)
http://wintersoldier2008.typepad.com/summer_patriot_winter_sol/2008/04/a-personal-righ.html
(“a personal right of self defense to terror under natural law”)
http://wintersoldier2008.typepad.com/summer_patriot_winter_sol/2008/04/the-right-of-th.html
(“the right of the individual under locke’s natural law concepts to wage defensive war against islam”)
http://wintersoldier2008.typepad.com/summer_patriot_winter_sol/2008/04/john-locke-on-t.html
(“john locke on the individual’s right to wage war”)
(“the militia: bulwark of freedom”)(poorly written, but the language from the federalist papers on the militia is invaluable, and part of “natural law.”)
now, to justice scalia and his exposition of natural law, and the right of the person to defend himself as inhering within the historical and intellectual framework of the second amendment to the united states constitution.
d.c. v. heller: and natural law. beginning at page 19 of the slip opinion in d.c. v. heller, 554 u.s. _____ (2008), justice scalia makes this remark about the individual nature of the right to keep and bear arms, as determined by the text of the amendment. he then launches into a somewhat arcane review of the history of the ebb and flow of catholic and protestant control of the crown, and their successive efforts to disarm each the other, to provide a historical context which provides tremendous insight into the content of the evolving concept of natural law. but first:
c. meaning of the operative clause. putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. this meaning is strongly confirmed by the historical background of the second amendment. we look to this because it has always been widely understood that the second amendment, like the first and fourth amendment, codified a pre-existing right. the very text of the second amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” as we said in united states v. cruishank, 92 u.s. 542, 553 (1876), “[t]his is not a right granted by the constitution. neither is it in any manner dependent upon that instrument for its existence. the second amendment declares that it shall not be infringed. …[n.16]. d.c. v. heller, 554 u.s. ____ (2008), p. 19 slip opinion.
justice scalia’s point, long recognized, is that the right discussed existed prior to the formation of the government, that it belonged to individuals independent of the existence or creation of government, and that the scope and parameter of the right was not dependent upon nor conferred by the creation of the constitution as a document, nor the government as created by that document.
this is a very direct statement, about as direct as it can get, that the right to keep and bear arms belongs to individuals. nonetheless, justice scalia is at some pains to explain this more fully. he notes that in the flow english history the right to bear arms belonged variously to catholics and protestants as they armed themselves and disarmed the other, depending upon who had the crown. for instance, the english declaration of rights, later codified as the english bill of rights, recognized only the right of protestants to own firearms:
“that the subjects which are protestants may have arms for their defense suitable to their conditions and as allowed by law” 1 w. & m., c. 2, sec. 7, in 3 eng. stat. at large (441 (1689). this right has been understood to be the predecessor to our second amendment. … it was clearly an individual right, having nothing whatever to do with service in a militia. d.c . v. heller, 554 u.s. ____ (2008), p. 20 slip opinion.
you will note that the statute in question was passed in the year 1689, just almost exactly 100 years before the ratification of the second amendment. these events, therefore, should be comprehended as having some antiquity.
justice scalia notes, and as we shall see at a latter point demonstrates with absolute clarity by citation to legal decision contemporaneous to the adoption of the second amendment, that by the time of the founding fathers the right to keep and bear arms was regarded as a matter of fundamental right to all english citizens, and hence, colonial citizens, in the view of the colonialists. writes the good justice, and gives the first hint of the coming natural law analysis:
by the time of the founding, the right to have arms had become fundamental for english subjects. see malcolm 122-134. blackstone, whose works, we have said, “constituted the preeminent authority on english law for the founding generation,” alden v. maine, 527 u.s. 706, 715 (1999), cited the arms proviso of the bill of rights as one of the fundamental rights of englishmen. see 1 blackstone 136, 139-140 (1765). his description of it cannot possibly be thought to tie it to militia or military service. it was, he said, “the natural right of resistance and self preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2-4 (1768). other contemporary authorities concurred. see g. sharp, tracts, concerning the ancient and only true legal means of national defence by a free militia 17-18, 27 (3d ed. 1782); 2 j. de. lolme, the rise and progress of the english constitution 886-887 (1784)(a. stephens ed. 1838); w. blizzard, desultory reflections on police 59-60 (1785). thus, the right secured in 1689 as a result of the stuarts’ abuses was by the time of the founding [of the united states] understood to be an individual right protecting against both public and private violence. [emphasis added: jjjay.]
(justice scalia does not seem to emphasize the use of such weapons by persons protecting themselves from the inroads of tyrannical sovereigns, or the usurpers of faction, as noted in federalist papers no.’s 28, 29, 34 and no.’s 10 & 46 in particular. the above observation that weapons were to protect against “… public and private violence. …” should give you heart and cheer, and remind you quite clearly that justice scalia has this in mind for another day. here, the issue before the court was whether a person had a right to have a firearm in his home, under any circumstance, … , and the court issued a resounding affirmation of that right.)[1]
in the following passage, quoted at some length to adequately make and secure the point, justice scalia conjoins the natural right of self defense and self preservation with the political right of the individual to keep and bear arms. scalia argues that history, and historical text and public attitudes firmly unites the natural right of self preservation to the political right to own firearms for personal protection, to protect against private and public violence:
and, of course, what the stuarts had tried to do to their political enemies, george iii had tried to do to the colonists. in the tumultuous decades of the 1760’s and 1770’s, the crown began to disarm the inhabitants of the most rebellious areas. that provoked polemical reactions by americans invoking their rights as englishmen to keep arms. a new york article of april 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the bill of rights, to keep arms for their own defence.” a journal of the times: march 17, new york journal, supp 1, apr. 13, 1769, in boston under military rule 79(o. dickerson ed. 1936)[2]; see also, e.g., shippen, boston gazette, jan. 30, 1769, in 1 the writings of samuel adams 299 (h. chusing ed. 1968). they understood the right to enable individuals to defend themselves. as the most important early american edition of blackstone’s commentaries (by the law professor and former antifederalist st. george tucker) made clear in the notes to the description of the arms right, americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent injury.” 1 blackstone’s commentaries 145-146,n. 42 (1803)(hereinafter tucker’s blackstone.) see also w. duer, outlines of the constitutional jurisprudence of the united states 31-32 (1833).
there seems to us no doubt, on the basis of both text and history, that the second amendment conferred an individual right to keep and bear arms. d.c. v. heller, 554 u.s. ______ (2008), pp. 21-22 slip opinion.
in the pages following the above text justice scalia painstakingly sets out language from the various state constitutional provisions adopted before and after the 2nd amendment, which buttress his observations that the view of the day with regard to individuals keeping and bearing arms was prevalent, indeed, that no meaningful debate or public argument detracted from the prevailing view. i do not mean to set those observations, opinions and writings out in their entirety or exhaustively. for that, the reader may take recourse to actually reading the entirety of the opinion. i do, however, wish to set out one or two of the most outstanding examples of how prevalent the views justice scalia ascribes to the founding fathers were.
he examines by turn the constitutions of the states, the writings of eminent jurists and scholars on the topic, and the language of court decisions in support of the majority’s reading and analysis of the law in question. as to –
the state constitutions and natural law. writes justice scalia:
our interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the second amendment.
four states adopted analogues to the federal second amendment in the period between independence and the ratification of the bill of rights. two of them -- pennsylvania and vermont – clearly adopted individual rights unconnected to militia service. pennsylvannia declaration of rights of 1776 said: “that the people have a right to bear arms for the defence of themselves, and the state ….” sec. xii, in 5 thorpe 3082, 3083 (emphasis added.) in 1777, vermont adopted the identical provision.
between 1780 and 1820, nine states adopted second amendment analogues. four of them – kentucky, ohio, indiana, and missouri – referred to the right of the people to “bear arms in defence of themselves and the state.” see n. 8, supra. another three states -- mississippi, connecticut, and alabma – used the even more individualistic phrasing that each citizen has the “right to bear arms in defence of himself and the state.” see ibid.
that of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right. d.c. v heller, 554 u.s. ____ (2008), slip opinion pp. 27-30
the learned commentators and natural law. as might be expected, blackstone’s commentaries are of some importance in the analysis of colonial attitudes on firearms, and on natural law, blackstone being a very prominent theorist and compiler of law and history. scalia brings us once again to the commentaries:
st. george tucker’s version of blackstone’s commentaries, as we explained above, conceived of the blackstonian arms right as necessary for self-defense. he equated that right, absent the religious and class-based restrictions, with the second amendment. see 2 tucker’s blackstone 143. in note d, entitled, “view of the constitution of the united states,” tucker elaborated on the second amendment: “this may be considered as the true palladium of liberty … . the right of self defense is the first law of nature: in most government it has been the study of rulers to confine the right within the narrowest limits possible. wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction..” 1 id, at app. 300 (ellipsis in original. d.c. v. heller 554 u.s. ____ (2008), p. 33 slip opinion.
pre-civil war gun cases and the natural law analysis. people do not write as they used to, probably because personalities are not as large as in other periods, and probably because people do nor orate and hence are dulled to the wonderfully capacity of the spoken and written language to carry the listener and reader. good writing does that, it sweeps you over the ground as though mounted on a low chariot between swift and tireless steeds, softly and swiftly and surely over the most broken and rough hewn ground, on the cushions of reason and persuasion. at least, that is my view of it.
listen if you will, to the language cited in the following case by justice scalia, and if you cannot feel the grin on justice scalia face as the ink flowed from his quill onto the linen pages of history, you do not appreciate the power of language, the communicated nuance of a personality knowing he grasps persuasion. well, enough, (smiling):
in nunn v. state, 1 ga. 243, 251 (1846), the georgia supreme court construed the second amendment as protecting the “natural right of self defense” and therefore struck down a ban on carrying pistols openly. its opinion perfectly captured the way in which the operative clause of the second amendment furthers the purpose announced in the prefatory clause, in continuity with the english right:
“the right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free state. our opinion is, that any law, state or federal, is repugnant to the constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by charles i. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in or own magna carta!”
likewise, in state v. chandler, 5 la. ann. 489, 490 (1850), the louisiana supreme court held that citizens had a right to carry arms openly: “this is the right guaranteed by the constitution of the united states, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”
now, you will read a lot of court opinions of this day and you will not find the ringing tones and clarion exhortations to manliness, civility, political virtue and courage as found in these state supreme court opinions. i read a lot of cases (from a long time ago) on the vexations caused the post-civil war mississippi and ohio valley authorities who tried to come to grips with the vice and other dens of inequity on the river boats and in the river towns, fueled by alcohol and gambling and prostitution: as a former prosecutor, i can tell you that the motives for crimes usually reduce themselves to a timeless trifecta of sex, drugs and money … all rampant and running at full steam up and down these rivers. some municipalities tried banning concealed weapons, and others the open wearing of weapons. the courts and opinions i have read struck an interesting balance in these matters. they tended to view the wearing of a concealed weapon as unmanly, sneaky, conniving and calculated to violence by sudden ambush, … , not encouraging, in their view, the sort of behavior expected of civilized and gentle men. a lot of courts upheld regulations as to wearing concealed weapons, as in their view the regulations did not implicate either protected political interests, nor legitimate rights of self defense by gentlemen. but, on the other hand, these courts viewed with approbation the attempted regulation of wearing of weapons openly and avowedly for defense of person, and viewed as sacrosanct and beyond the reach of the legislature the open wearing and possession of firearms as instruments to oppose oppression and tyranny. they drew a distinction, suggested by the tone and language of cases cited all over heller, between the use of weapons for political and personal defense purposes, which were elevated and protected, and the use of weapons for mere affray, violence serving no particular higher social purpose other than the most extreme expression of debauchery and licentious behaviors.
it all fits in rather nicely with the heller courts finding of newly permanent lodgings for an old way of viewing things, an old and venerated political theory which has lived in a cramped attic dormer, neglected and forgotten, and which has suddenly gotten nicer digs in the downstairs parlors, drawing and sitting rooms with the other political philosophies at the various inns of court. and, has received a nice seat at the head of the dining table for meals, taking supper with the most august heads of state and justices of court, as in days of yore. it is all rather nice to see, for those of us who admire courtly manners and considered thought, and who view the pandering to the rabble and jealousies of societies of the more modern philosophies with considerable distaste.
so, there you have it. justice antonin scalia turned to the writings of a much earlier era, predating our own revolutionary beginning in the 1770’s & 80’s by several millennia. it is a welcome return to some sense of decorum and order in a world view, to many of us, quite welcome indeed, like walking into a well upholstered library for a cigar and brandy after supper.
some basic principles ought to be kept in view, and i would again encourage you to read the essays on natural law for which the links are given at the start of this article.
in the structures of natural law you will find societies viewed as founded on a compact entered into by the governed and the governors, which are premised on the notion that the wisest and best administration of society is based upon an adherence to law and its traditions; in which the subject even while he owes obeisance to the ruler, rightfully expects the ruler and his subordinate magistrates to provide a fair and orderly administration of the laws, and in which the ruler while exacting certain duties and obligations from his subjects also owes them the duty of protection from foreign invasion, civil affray and insurrection, and honesty in the administration of the nation.
it is a view of society premised upon law, and contractual obligations between subject and sovereign which are reciprocal and correlative between the two stations in life. for every right there is a duty, for every duty a concomitant right. the quid pro quo for the subject of rule is protection from the unsettled existence of nature, in which the subject had rights, but rights which he had to enforce and assert by himself in a continual struggle against others, and by recourse to force and violence if the dispute between he and his neighbors proved intractable or incapable of resolution.
the central feature of this government, in the eyes of men like hobbes, locke and blackstone, was the judge or magistrate, a person of rectitude and honesty to whom disputes could be turned over to for resolution, whether by mediation or arbitration or by the final judgment of a court. it should be understood that the common law has never promised justice from its courts, only a final decision, finality in the dispute, from which men walked out of the court room not necessarily pleased but secure in the knowledge that the dispute was ended, and no further conflict would flow from it.
to the natural law theorists, a man gave his up the autonomy to decide his own disputes, by force of will and arms if need be, by leaving the state of nature and entering civil society. what he gained, was order and predictability, peace and longevity. the man who entered civil society did not give up freedom, he gave up unpredictable conflict.
and, in the view of these theorists, he retained much from his existence in raw untrammeled and unrestricted nature. what he retained, he did not give to the sovereign. he gave to the sovereign only those things reasonably necessary to assure order between himself and his neighbor.
the man who entered society did not surrender or forfeit control over his own live.
he retained the right to preserve it as part of his compact with society and with his sovereign.
he kept the right of self defense, and in our heritage, he kept his right to weapons and firearms. you will note, that there is no suggestion in this country that a person much give up his steak knife or his hunting knife, by contrast to england, in which those who would protect us from ourselves and our baser instincts are making a concerted effort to ban “sharp” things from society.
this right to keep firearms is now enshrined in our jurisprudence.
the great thinkers on natural law went farther than judge scalia has gone in the heller case, in terms of the scope and dimension of self defense and the occasion of its exercise by a man.
they argued that if the sovereign did not protect the subject then the subject did not owe the sovereign obeisance. they argued that if the sovereign oppressed the subject, the subject retained the right to oppose the sovereign, and to rebel against and resist the sovereign’s oppression.
they also argued, that a man could find himself in a mixed state of civil society and nature, and could find himself warred upon by his neighbor, or by an invading force, and in such cases, a man could lawfully, legally and morally wage war against the person who waged war upon him. they argued that the sovereign’s ability and right to do things was derivative of the man’s authority to protect and preserve himself in nature, and that the sovereign’s authority was cumulative and a gathering of this power and right from his many subjects. they argued that what the man could confer on the sovereign he could still exercise on his own prerogative under exigent circumstances or if the sovereign failed in his reciprocal duties of protecting the man, in return for the man’s obeisance.
the open question now is might justice scalia and his brethren, having come this far with the great thinkers of natural law, be encouraged and induced to take the further steps of endorsing the natural law positions on the right of a man to wage war against an enemy who has attacked and threatened him, if the protection of the sovereign proves unavailing. having come this far with natural law, and seemingly feeling very comfortable in the trip, will justice scalia and his colleagues endorse the right of the individual to wage war against his attacker.
this topic we will revisit.
i would ask you to visit the old links.
for right now, be secure in your castle, in your right to read and think as you desire, and secure in your right to protect yourself against my transgressions, and the transgressions of your sovereign, with whatever legal means you have been prudent enough to secure for your own protections.
keep in mind that if you were stupid in nature, you perished. if you had insufficient will to assert your own existence and beliefs, you perished. that persons who are not beholden in any contractual relationship to you, exist as to you in a state of nature, in & of perpetual conflict, and that if you forget that in nature, or in civil society, you perish.
not much has changed, has it?
john jay @ 09.19.2008
[1] for those of you not entirely confident of my assurances in this regard, i would refer you to this portion of the opinion following, where justice scalia and the majority intimate precisely as i have:
“there are many reasons why the militia was thought to be ‘necessary to the security of a free state.’ see 3 story sec. 1890. first, of course, it is useful in repelling invasions and suppressing insurrections. second, it renders large standing armies unnecessary—an argument that alexander hamilton made in favor of federal control over the militia. the federalist no. 29, pp. 226, 227 (b. wright ed. 1961)(a. hamilton). third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.” d.c. v. heller, 554 u.s. ____ (2008), pp. 24-25 slip opinion. do not worry, as long as justice scalia can marshal a majority of the court behind him, this view of the 2nd amendment will not disappear.
[2] “it is a natural right which the people have reserved to themselves, confirmed by the bill of right, to keep arms for their own defense.” written in 1769, this statement predated the revolutionary war and refers to the english bill of rights. it is also a classic formulation of the natural law doctrine that a populace ceded only those powers to a sovereign necessary to assure proper and just governance, and that the people reserved unto themselves those rights and privileges as existed amongst their own community, precedence to allowing governance to be exercised over themselves. this is a classic formulation of natural right, and it is cited as such here by no accident, in support of the view that the people preserved the right to keep and bear arms unto themselves.
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