By Gary A. Shade
January 10, 1993


This Research Brief is a copyrighted work of Gary A. Shade. This brief can be
freely distributed and copied for personal use under the following stipulations:

About the Author

Gary Shade is the President and co-owner of Shade's Landing Inc., a family owned
and operated web design and hosting company based in Minnesota. Mr. Shade is the
author of over 80 computers articles, and five books on computers published by
Prentice Hall, and Holt, Rhinehart and Winston as well as other publishers. Mr.
Shade holds an AAS in Electronics Technology and BSM in Management from Cardinal
Stritch University and will earm his Masters of Science in Management in October
2003. He has served on various community organizations for the City of Apple
Valley Minnesota and for Dakota County Minnesota including the Dakota County
Watershed Management, Gardenview Drive Traffic Ad-Hoc committee and the Black
Dog Watershed Committee. He has testified before the Minnesota State Legislature
on proposed firearms legislation and worked on various political campaigns. He's
married with two children. His hobbies include fishing and hunting, firearms
collecting, Amateur Radio (his call sign is KC0LFP) and muscle cars. Mr. Shade
is an ardent and outspoken critic of "zero tolerance" programs, and police abuse
and is an equally ardent supporter of civil rights and the Constitution. He is
also a certified NRA Instructor on Basic Pistol and Personal Protection.


First Published: January 10, 1993
The Right to Keep and Bear Arms
The Legacy of Republicanism vs. Absolutism
(c) 1993 - 2003
Gary A. Shade
Introduction
Much of today's debate regarding the individual's right to keep and bear arms,
has been shrouded by misapplying various interpretations of the militia clause
of the second amendment to the US Constitution. 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."
The proponents of gun control insist that the second amendment only apply to an
organized militia such as the National Guard. However they overlook the fact the
National Guard in times of national crises, comes under direct control of the
Federal Government. The Guard works in concert with the regular Army in carrying
out the Federal military mission. This was finally put to rest when in the
1980s, then Minnesota Governor Rudy Perpich sued the Federal Government over
control of the National Guard. The State of Minnesota lost the case and the
Federal Government won.
The act of federalizing the National Guard is due to the law passed by Congress
on January 21, 1903. It provides that the "..organized militia known as the
National Guard of the state, Territory or District of Columbia.. " is under the
command of the Nation's Chief Executive. Furthermore, all arms are controlled by
and owned by the Federal Government.
If indeed the National Guard can be placed under Federal Control, then who is
the unorganized militia? This question is rooted in historical precedence with
ample evidence provided by the ancients, and contemporary thinkers that we are.
That is to say, all able-bodied men (and now perhaps women) between the ages of
17 and 45 who are capable of acting in defense of the country. This definition
also exits in the current United States Code [10 U.S.C. 311 (a)] which states:
"The militia of the United States consists of all able-bodied males at least
17 years of age, and, except as provided in section 313 of title 32, under 45
years of age . . . "
The US Code further divides the militia into two classes: The organized, and the
unorganized militia. The organized militia is viewed in the USC as the National
Guard and Naval Militia, and the unorganized militia that consists of ".. all
members of the militia who are not members of the National Guard or the Naval
Militia." [10 U.S.C. 311 (c)]
Advocates of gun control not only ignore the definition of militia as that of
the citizen soldier, they also ignore that the final clause that uses the
verbiage of the "..right of the people..", is the same application of the "the
people as used in the First, Fourth, Ninth, and Tenth Amendments.
The application of the First Amendment applies to an individual's right to free
speech. The Fourth Amendment secures the individual against unreasonable
searches and seizures of property by the government. If the Second Amendment
were to be construed as a collective right, then it logically follows that only
corporations or collective bodies (such as political parties) would have a right
to free speech, and would be free from unreasonable search and seizures.
Yet these Amendments have been interpreted to be individual rights due to the
clause that refers to 'the people'. The people refer to the individuals that
make up the general populace.
It is precisely this definition that divides today's debate on gun control. The
idea of the citizen soldier is older than ancient Rome. The unorganized militia
provides for a citizen soldier to be the guardian of liberty and freedom.
Where did this well established but often overlooked view of the militia
originate? As will be seen, its history can be found in the most early
discussions on politics: From Rome, to Greece, to Virginia.
The most contemporary work on this subject, is:
That Every Man Be Armed - The Evolution of a Constitutional Right
by Attorney Stephen P. Halbrook. Halbrook's work is the most thorough and
documented work on the Second Amendment this century. This paper relies heavily
upon the work of Mr. Halbrook, and provides the necessary and proper credits in
the bibliography.
The Ancient Greeks and Romans

In Plato's Republic, Plato discusses how, through force, an unjust state could
win favor. Oligarchy forms of government occur when privilege is fixed by
statute. (Republic 139-140.) Plato envisions a move to a democracy, but retains
much of the social inequality associated with absolutism. The need for a strong
leader is anticipated who would revert to absolute authority and halt the march
to democracy. Plato concludes:
"Then to be sure, the people will learn what sort of a creature it has bred
and nursed to greatness in its bosom, until now the child is too strong for
the parent to drive out. Do you mean that the despot will dare to lay hands on
this father of his and beat him if he resists? Yes, when once he has disarmed
him." (Republic 295)
The idea of a philosopher king that Plato contemplates, assumes the best in
human nature and does not speculate on the more contemporary historical
fragility of such assumptions. Even Catherine the Great of Russia, an
enlightened despot, later reversed herself from enlightenment to absolutism (The
Western Heritage, 653.) Whereas once a shrewd promoter of Voltaire and others,
Catherine later burned his books and banned them from Russia. (The Western
Heritage, 679.)
Aristotle argued that citizens must be protected from tyranny, and that tyranny
was achieved through the King's use of a standing army. (Politics, 82) Both
Plato and Aristotle spoke of the King's use of the standing army to wage war,
and to heavily tax the populace. These efforts would preoccupy the general
populace to prevent an overthrow the oligarchy. (That Every Man be Armed, 12)
Rome's Cicero also put forth the notion that an individual also has the right to
bear arms in self defense. When defending Titus Annius Milo in 53 B.C. for the
murder of Publius Claudius Pulcher, he stated:
There are, many occasions on which homicide is justifiable. In particular, when
violence is needed to repel violence, such an act is not merely justified but
unavoidable" (Selected Political Speeches, 78-81)
Here the natural law of self defense is eloquently stated by Cicero. Cicero
states:
".. there exists a law, not written down anywhere but inborn in our hearts; a
law which comes to us not by training or reading but by natural intuition."
He further discusses the moral righteousness of using ".. every method to
protect ourselves." Not only is Cicero speaking of the individual's right to
bear arms in self defense from another individual, but also to defend one's
person and property from violence by the state.
Rome stood as a free republic until Gaius Marius abolished the citizen soldier
in 49 B.C. (That Every Man Be Armed, 18) Caesar's reign marked the beginning of
the Empire. Caesar was ruthless in his conquests. He would not accept surrender
from his enemies until all the arms of the conquered town had been collected. He
would mutilate those who bore arms against him by cutting off their hands. (That
Every Man Be Armed, 18) Caesar knew that an armed populace was more difficult to
conquer.
Machiavelli
Machiavelli was also a believer in the citizen soldier or citizen militia. In
his work Discourses on the First Ten Books of Titus Livy, he praises Rome before
the reign of Caesar. Machiavelli was also against large standing armies as shown
in the following passage.
"..in attacking a foreign country, [the Romans] never sent out armies greater
than fifty thousand men; but for home defense against the Gauls after the
first Punic war eighteen hundred thousand....In conclusion, therefore, I say
again that a ruler who has his people well armed and equipped for war, should
always wait at home to wage war.." (Discourses, 107)
Machiavelli also notes that:
"Rome remained free for four hundred years and Sparta for eight hundred" with
an armed populace, while other countries who disarmed their citizens "lost
their liberties in less than forty years." (The Art of War, 18)
The comparison of Machiavelli's writing to similar wording found in our
Constitution proves to be surprisingly similar.
Machiavelli wrote that private citizens made up the "..regular and well ordered
militia.." (The Art of War, 39) and our Constitution reads "A well regulated
Militia being necessary to the security of a free State.." To Machiavelli, well
ordered, and to our founding fathers well regulated, meant the same thing:
Citizens trained to arms.
Seventeenth Century Thought
In the 17th century, great thinkers attempted to justify the existence of
absolute rulers, while others such as Algernon Sidney and John Locke argued for
a democratic republic. In arguing for a monarchy, Jean Bodin sees the
deprivation of arms essential to maintaining a ruler's authority. Bodin believed
that such ruler's were above the law.
Similar to today's argument's for gun control, Bodin saw arms control as a means
of people control, to control the masses and prevent seditions. Similar to
today, the arguments used in achieving an unarmed populace were to prevent
murders, and seditions. Bodin states in his Six Bookes of A Commonweale (1606),
"..the law may be good, just, and reasonable, and yet the prince to be no way
subject or bound thereto: as if he should forbid all his subjects, except his
guard and garrison soldiers, upon pain of death to carry weapons, so to take
away the fears of murders and seditions; he in this case ought not to be
subject to his own law, but to the contrary, to be well armed for the defense
of the good, and punishment of the evil." (Six Bookes on A Commonweale, 106)
To Bodin, the ruling monarchy was to be placed above the laws that governed
their subjects. Acts not unlike what Bodin had envisioned, occur today where
citizens are disarmed by law, yet the privileged class is exempted.
John Locke was also an advocate of the citizen soldier. Locke explained in great
detail in his Two Treatises on Civil Government (1689), that government of man
must be based on mutual consent, and that each individual remains free due to
the natural laws of nature. Because of this, each man has the right to overthrow
a despotic government. As each individual maintains their natural rights, they
also have the right to defend those rights against any individual or group who
threatens them. Locke wrote:
".. it being reasonable and just I should have a right to destroy that which
threatens me with destruction." (Second Treatise of Civil Government, 14)
Locke firmly believed that man had a moral right to use force to overthrow an
unjust government. That the right to resist an unjust government with arms was
little different than protecting one's self from an individual's aggression.
Framer's Intent
Locke's influence on our founding fathers was profound. His major contribution
that all men retain their natural rights to life, liberty, and property became a
major influence on how our Constitution was written. The Virginia Declaration of
Rights, (which was largely written by George Mason on June 12, 1776), nearly
echoed verbatim Locke's views on natural rights. Article One states:
"That all men are by nature equally free and independent, and have certain
inherent rights, of which, when they enter into a state of society, they
cannot, by any compact, deprive or divest their posterity; namely, the
enjoyment of life, liberty, with the means of acquiring and possessing
property, and pursuing and obtaining happiness and safety."
Article 13 of the Virginia Bill of Rights further states:
"That a well regulated militia, composed of the body of the people, trained to
arms, is the proper, natural, and safe defense of a free state; that standing
armies, in time of peace, should be avoided as dangerous to liberty; and that,
in all cases, the military should be under strict subordination to, and
governed by, the civil power."
Here again we plainly see that the early framers of the Declaration of Rights
believed that the new nation's security rested upon a citizen militia. The idea
presupposes a natural right for the citizens to keep and bear arms. Virginia's
Declaration of Rights would later serve as the model for our own Constitution.
During the Philadelphia Convention of 1788, Patrick Henry argued passionately
for the individual's rights against the Federalists James Madison and Edmund
Randolf. Henry was insistent that the new Constitution of the United States
contain a Bill of Rights similar to Virginia's. Madison did not believe one was
necessary as the people retained the right to overthrow an unjust government. He
also believed that all rights not given up to the new government were retained
by the people.
Henry and Mason both argued against ratifying the new Constitution unless
specific right's were enumerated as had been done with their own State
Constitution. Randolf, himself an ally of Madison's, refused to sign the new
Constitution unless a Bill of Rights were present. (Madison and The Bill of
Rights, 4)
The original language of the Second Amendment as proposed by Madison, read:
"The right of the people to keep and bear arms shall not be infringed; a well
armed, and well-regulated militia being the best security to a free country:
but no person religiously scrupulous of bearing arms, shall be compelled to
render military service in person." (Madison and the Bill of Rights, 5)
Madison added the language of the right to keep and bear arms in first draft. A
right of the people. The wording the house committee chose read:
"A well regulated militia, composed of the body of the people, being the best
security of a free state, the right of the people to keep and bear arms shall
not be infringed, but no person religiously scrupulous shall be compelled to
bear arms."
This draft, reversed the people and militia clauses but retained Madison's
conscientious objector clause. Additionally author Halbrook points out that it
is clearly shown from Madison's notes that he would use to propose the
Amendment:
"They [the proposed amendments] relate first to private rights .." (That Every
Man be Armed, 76)
The Senate version dropped the conscientious objector clause all together, and
what was to become our nation's second amendment was finally adopted by the
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."
During the House debates, of our Second Amendment, Representative Elbridge Gerry
begged the question:
"What, Sir is the use of a militia? It is to prevent the establishment of a
standing army, the bane of liberty."
The well-regulated clause of the second amendment suggests that the citizen
soldier must retain not only the right to keep and bear arms, but must be
proficient in their use. (That Every Man Be Armed, 78)
The argument that the "well-regulated militia" clause implies a collective
rather than an individual right can be rebuked with the Federalist Papers number
29, where Alexander Hamilton wrote:
"..the great body of yeomanry and of the other classes of citizens to be under
arms for the purpose of going through military exercises and evolutions, as
often as might be necessary to acquire the degree of perfection which would
entitle them to the character of a well-regulated militia." (Federalists #29,
184-185)
Here, as can be clearly seen, a well-regulated militia is composed of ordinary
citizens who are trained to arms. The contemporary argument used by gun control
advocates that the militia clause means only police or the government should be
allowed to have arms, has no historical, or factual precedence what so ever.
Conclusion
The militia is quite simply you and me. It is our moral duty to be proficient in
the use of arms for our own self preservation and that of our country. Standing
armies have been viewed as the bane of liberty, and not the protectors of it.
Freemen have a right and moral duty to oppose the unlawful taking of our natural
rights by any means available to us. As radical and revolutionary as this may
sound today, it has been said many times before. It is as true today as it was
in Ancient Rome, Sparta, or in Eighteenth Century Virginia.
Works Cited
Plato, Republic 139-140 (E. Vornford translation. 1945), as cited by Halbrook,
Stephen P., That Every Man Be Armed, p. 9. The LibertyTree Press, San Francisco
CA. 1984.
Plato, Republic, p. 295 (E. Vornford translation. 1945), as cited by Halbrook,
Stephen P., That Every Man Be Armed, p. 10. The LibertyTree Press, San Francisco
CA.
Kagan D., and Ozment S., and Turner F., The Western Heritage (Fourth Edition,
Volume II), p. 653. Macmillan Publishing Company, NY, 1987.
Id. at 679.
Aristotle, Politics, p. 82, as cited by Halbrook, Stephen P., That Every Man Be
Armed, p. 9. The LibertyTree Press, San Francisco CA. 1984.
Halbrook, Stephen P., That Every Man Be Armed, p. 12. The LibertyTree Press, San
Francisco CA. 1984.
Cicero, Selected Political Speeches, pp. 79-81 (M. Grant transl.1969), as cited
by Halbrook, Stephen P., That Every Man Be Armed, p. 16. The LibertyTree Press,
San Francisco CA.
Halbrook, Stephen P., That Every Man Be Armed, p. 18. The LibertyTree Press, San
Francisco CA. 1984.
Machiavelli, Discourses, p. 107, as cited by Halbrook, Stephen P., That Every
Man Be Armed, p. 21. The LibertyTree Press, San Francisco CA. 1984.
Machiavelli, The Art of War, p. 18, as cited by Halbrook, Stephen P., That Every
Man Be Armed, p. 22. The LibertyTree Press, San Francisco CA. 1984.
Machiavelli, The Art of War, p.39, as cited by Halbrook, Stephen P., That Every
Man Be Armed, p. 22. The LibertyTree Press, San Francisco CA. 1984.
Bodin, Jean, Six Books on A Commonweale, p. 106, as cited by Halbrook, Stephen
P., That Every Man Be Armed, p. 25. The LibertyTree Press, San Francisco CA.
1984.
Locke, John, Second Treatise of Civil Government, p.14, (Chicago 1955), as cited
by Halbrook, Stephen P., That Every Man Be Armed, p. 22. The LibertyTree Press,
San Francisco CA. 1984.
McCabe, Michael K., Madison & The Bill Of Rights, p. 4, American Rifleman, Feb.,
Mar., Apr., 1991. National Rifle Association, Washington DC.
Id. at 5.
Halbrook, Stephen P., That Every Man Be Armed, p. 76. The LibertyTree Press, San
Francisco CA. 1984.
Id. at 78.