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IPFS News Link • Gun Rights

Self-Gov't and the Unalienable Right of Self-Defense: Restoring the 2nd Amendment - Erich Pratt

• Erich Pratt - Exec Dir Gun Owner's of America

I.   Introduction
      A. Laws and Rights are Given by God
      B. The Declaration as Charter
II.   Self-government and Self-defense
      A. The Law of Self-Government
      B. The Right of Self-Defense
      C. Theological Perspectives
      D. Historical Perspectives

I.   INTRODUCTION

Embodied in the Second Amendment to the Constitution is the truth that self-governing individuals should bear the responsibility for defending themselves. The 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.

This Amendment has generated a considerable amount of controversy among legal scholars.1 Some argue that the Amendment grants an "individual right" to keep and bear arms, while others believe that this right only applies collectively to those in the militia.

Without fail, however, most scholars ignore the foundational principles which are embodied in the Second Amendment. The law of self-government is almost entirely absent from the writings of Second Amendment scholars, and the right of self-defense, if mentioned, is only treated as a constitutional or historical by-product. Rarely does anyone ever treat self-defense as a natural right, or as one founding father said, "a primary law of nature, which . . . (is] the immediate gift of the Creator."2 As a God-given right, self-defense is an unalienable right which is incapable of being surrendered or transferred. But to understand these principles and how they interrelate, one must first examine the "Laws of Nature and of Nature's God."

A. Laws and Rights are Given by God

In 1776 the framers of the Declaration of Independence appealed to the "Laws of Nature and of Nature's God."3 They unanimously affirmed that these laws would define the legal rights and principles which would both justify their separation from England and help them establish any future government.

The framers understood the laws of nature and of nature's God to refer to those laws which the Creator had revealed to man. Law was seen as God-given, not man-invented; fixed and permanent; binding everyone in every nation. Furthermore, the framers also believed that the laws of nature and of nature's God explained the nature of man's rights. Rights were God-given, not government-created. And the Declaration of Independence affirmed this truth by asserting that "all Men . . . are endowed by their Creator with certain unalienable Rights." In short, the laws of nature and of nature's God are crucial to understanding the essence of self-government and self-defense. The founders considered both principles to be divinely instituted and far-reaching in their application.

B. The Declaration as Charter

Three ideas which are reflected in the Declaration are the laws of nature, unalienable rights and self-government. What the Declaration has to say is important because it is the Charter of the United States.4 Any form of government established after the Charter must be consistent with its principles, Just as any corporate form of government must be consistent with its corporate charter.5 The founding fathers realized this indisputable legal maxim. In 1787, they drafted a Constitutional form of government upon which John Quincy Adams later observed, "was the complement to the Declaration of Independence; founded upon the same principles, carrying them out into practical execution, and forming with it, one entire system of national government."6 In other words, the Declaration gives meaning to the Constitution. If the Declaration's principles are separated from the Constitution, then the Constitution's meaning is likely to reflect the transient whims of the majority, the highly vocal or a powerful elite. Both the Declaration and the Constitution are significant legal documents because both, by nature, comprise the covenantal foundation of the United States. Just as a corporate charter and constitution govern the corporation's exercise of authority, so too the Declaration and Constitution set forth the legal and political principles that govern the national objects of the nation.

As an appendage to the Constitution, the Second Amendment must therefore be interpreted according to the principles found in the Declaration and Constitution respectively. Both documents, however, are only lawful to the extent they conform to the laws of nature and of nature's God. For example, no science text book is accurate if it denies or ignores the existence of the law of gravity. Neither is a charter or a constitution lawful if its principles are contrary to the laws of nature.

Consequently, the laws of nature and of nature's God are the foundation for any discussion of law and rights. This higher law declares that all human beings are self-governing individuals. And while the Declaration articulates the law of self-government, the Constitution in turn reflects the application of this law in a variety of contexts, one of which is found in the Second Amendment. The law of self-government is thus vitally important to any discussion of self-defense. To these matters, attention is now focused.

II.   SELF-GOVERNMENT AND SELF-DEFENSE

A. The Law of Self-Government

One principle derived from the laws of nature and of nature's God is the law of self-government. Self-government, properly understood, involves those duties man owes to the Creator, such as the duties toward God, neighbor and himself. The key idea, however, is that men are capable of directing and controlling themselves.

The Declaration acknowledges the law of self-government by asserting "that all Men are created equal" — a statement which presupposes that all men are equally made in the image of God.7 As God's image-bearer, man is accountable to the Creator for his actions.8 This accountability requires man to govern himself properly and to ensure that the exercise of rights conforms to the Creator's law. This conformity to the law must come from the inside-out — man's internal will must control his external actions.

Since man is responsible for governing himself, no man has an inherent right to govern another man. One exception to this rule occurs when a person voluntarily consents to be governed by another. Self-governing individuals may therefore choose those whom they desire to rule over them.

The Declaration affirms this principle in two contexts. It first asserts that civil governments derive "their just powers from the consent of the governed." Second, it observes that the people can change their form of government whenever it becomes destructive of the people's freedoms.

The Declaration states,

[I]t is the Right of the People to alter or to abolish it [the existing government], and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.

In other words, the people have the unalienable right to govern themselves, whether they "institute" a government, "organize" its powers, or "alter" or "abolish" it when it becomes tyrannical. Governments are likewise established from the inside-out — the original authority residing in the hands of the people, not in the hands of a few civil rulers.9

B. The Right of Self-Defense

One aspect of self-government is the duty of self-defense, which the founders also considered to be an unalienable right.10 This right, similar to the law of self-government, also works from the inside-out, meaning that, self-governing individuals should bear the primary responsibility for defending themselves. The Declaration affirms this maxim by stating that, "it is their [the people's] Right, it is their Duty, to throw off such Government [i.e., a tyrannical one], and to provide new Guards for their future Security." This statement presupposes a people's right of self-defense.

King George III, however, had assumed the opposite. He believed that the right of self-defense originated in government, not in the people. In the Declaration, the founders stated that the king had kept "among us, in Times of Peace, Standing Armies, without the consent of our Legislatures." Without the consent of the people through their legislatures, the standing armies were seen to be one of the king's many attempts to establish "an absolute Tyranny over these States." Consent was important because the ultimate authority for self-defense originated in the people.

The founders believed that the right of self-defense stemmed from the "Laws of Nature and of Nature's God."11 As mentioned earlier, these laws are important for they are the legal framework in which one must interpret the Constitution and the Bill of Rights — particularly the Second Amendment. Moreover, these laws of nature and of nature's God are important because they influenced the thinking of the founding fathers more than anything else — more than the common law or the classical writers did.

To understand the actions of the founders, one must first understand their thinking. And by examining the National Charter (that is, the Declaration of Independence), one can find what affected their thinking the most. Although the founders were well versed in the classics and the con law, they did not appeal to Aristotle, Cicero, Locke or Blackstone to justify their break with England. Instead, they appealed to "the Laws of Nature and of Nature's God."

From these laws, the founders formulated an entire political philosophy, the basics of which are stated in the Declaration. The founders stated,

That all Men are created equal, that they are endowed by their Creator with certain unalienable Rights . . . That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it.

But what are the "Laws of Nature and of Nature's God"? John Quincy Adams said that this phrase,

Presupposes the existence of a God, the moral ruler of the universe, and a rule of right and wrong, of just and unjust, binding upon man, preceding all institutions of human society and of government.12

Adams' statement recognizes that God has revealed his law to men and that this law is binding upon everyone. The phrase "Laws of Nature and of Nature's God" was a common way to assert that God had revealed his law through two outlets: nature and the Bible.13 In fact, the laws of God, the laws of nature, and the laws of the Bible were all considered synonymous. For example, James Wilson, one of the few men to sign both the Declaration and the Constitution, declared that, "It should always be remembered, that this law, natural or revealed (in the Bible] . . flows from the same divine source: it is the law of God."14 Similarly, Samuel Adams, another signer of the Declaration, stated that,

All men are equally bound by the laws of nature, or, to speak more properly, the laws of the Creator. They are imprinted by the finger of God on the heart of man. . . . [T]he voice of Nature . . . is confirmed by written Revelation.15 (Emphasis added.)

God's written revelation was very important to the founders. In fact, by appealing to the "Laws of Nature and of Nature's God," they were affirming their submission to the laws of the Bible. (See Appendix A.) John Q. Adams stated, for instance, that

From the day of the Declaration . . . [t]hey [the American people] were bound by the laws of God, which they all, and by the laws of the Gospel, which they nearly all, acknowledged as the rules of their conduct.16

This is significant for it indicates that one must examine the Scriptures to understand the political thinking of the founding fathers. The framers, however, did not use explicit Biblical examples to support their arguments because they considered sectarian terminology to be inappropriate in the legal sector.17 Instead, they illustrated their principled arguments with examples from "secular" history and "secular" writers, which reflected the laws of God in non-religious terms.

By using non-sectarian terminology, the founders were able to express their Biblical world-view in the legal sphere. It is evident from the sermons preached during the eighteenth century that both clergy and laymen alike had a good grasp of the Biblical principles of government. Moreover, the clergy had much to say about the Scriptural arguments for self-defense, for they drew upon the theological insights of the Protestant theologians of the Reformation and the Catholic theologians of the Middle Ages.

C. Theological Perspectives

Catholic theologians such as St. Augustine (? -604) and Thomas Aquinas (1225-1274) asserted that a defensive war was justifiable.18 The Spanish theologian, Francisco Suarez (1548-1617), stated that private wars of self-defense could, under certain conditions, be justifiable.19 Protestant Reformers such as Stephen Junius Brutus (? -1689), Samuel Rutherford (1600-1661) and John Calvin (1509-1564) asserted that tyrannical kings can be deposed by lower-level government rulers.20 Rutherford, for example, stated that,

We hold, that the king using, contrary to the oath of God and his royal office, violence in killing . . . his subjects, by bloody emissaries, may be resisted by defensive wars, at the commandment of the estates of the kingdom. . . . Now, that they [the estates] may take away this power, is clear in Athaliah's case [II Kings 11:1-21].21

Brutus and Rutherford also spoke of an individual right of self-defense.22 With this theological background, it is not surprising that eighteenth century pastors had much to say on the subject of self-defense. Many of the preachers in the 1700's believed that self-defense was a right given by God. A Biblical example is found in the life of David, who took Goliath's sword to protect himself from King Saul who was seeking to kill him.23David's actions show that fleeing can often be better than fighting -and this he did frequently. But the mere fact that he armed himself with both men and weapons shows that he was prepared to fight if he was forced to defend himself.24 As Rutherford states,

If Saul had actually invaded David for his life, David might, in that case, make use of Goliath's sword, (for he took not that weapon with him as a cypher to boast Saul ? it is not less unlawful to threaten a king than to put hands on him.)25 (Emphasis added.)

Also, David's actions reveal the boundaries of self-defense. One can only defend oneself against an attack; if one is not in danger of any harm, then there is nothing to resist. That is why David did not attack Saul in his sleep.26 A sleeping enemy could hardly be considered a deadly threat, and thus, for David to kill in that situation would have been an assault, not self-defense. Rutherford states that,

[For] David to kill Saul sleeping . . . had not been wisdom nor justice; because to kill the enemy in a just self-defence, must be, when the enemy actually doth invade, and the life of defendant cannot be otherwise saved. A sleeping enemy is not in the act of unjust pursuit of the innocent.27

One might argue, however, that David refrained from attacking Saul for a different reason. After all, David said, "The Lord forbid that I should do such a thing to my master, the Lord's anointed, or lift my hand against him; for he is the anointed of the Lord."28 Is David saying that kings are immune from punishment? No, for Athaliah's case shows that tyrants can be punished by the lower-level government officials.29 By affirming that Saul was the "Lord's anointed," David not only indicates that Saul was not a tyrant but also that he was still the lawful ruler of Israel. This is a reasonable conclusion since Saul's attack was not against the kingdom, but against David only. Rutherford concludes that an assault against a single individual does not make a king a tyrant:

Saul intended no arbitrary government, nor to make Israel a conquered people, nor yet to cut off all that professed the true worship of God; nor came Saul against these princes, elders and people, who made him king, only David's head would have made Saul lay down arms.30

Thus, David could only use the sword of self-defense.

But when an attack is levied against the entire kingdom by either a tyrant or a foreign nation, the situation is entirely different. An attack made against the entire nation is an act of war. While the people in the kingdom certainly have the authority to defend themselves, only the civil authorities can bear the sword of vengeance.31 Rutherford states that,

One man sleeping cannot be in actual pursuit of another man; so that the self-defender may lawfully kill him in his sleep; but the case is far otherwise in lawful wars; the Israelites might lawfully kill the Philistines encamping about Jerusalem to destroy it, and religion, and the church of God, though they were all sleeping; even though we suppose king Saul had brought them in by his authority, and though he were sleeping in the midst of the uncircumcised armies.32

By stating that "the Israelites might lawfully kill the Philistines," Rutherford is referring to the Israelite citizens under the authority of the civil leaders. Rutherford qualifies this statement elsewhere by asserting that "If the king should sell his country, and bring in a foreign army, the estates(emphasis added) are to convene, to take course for the safety of the kingdom."33

Thus, while an individual can bear the sword in self-defense, only the civil magistrates can bear the sword of vengeance in an "offensive" manner. (Bearing the sword "offensively" would include imposing a civil punishment, levying an attack against a retreating enemy in battle or launching a preemptive strike, assuming there is a just cause.)

In short, many eighteenth century preachers viewed Abraham, Joshua and David as examples of men who had exercised the duty of self-defense.34Not only did these preachers assume that self-defense was a God-given right, but they also believed that self-defense was consistent with being a Christian. For example, one preacher asserted that, "Self-defense is an established law of our nature . . . which has never been superseded by any written law of God, or by the religion of Jesus."35

The Right and Duty to Bear Arms

The preachers during this era also taught Biblical methods of self-defense — all of which adhered to the inside-out principle. The first method was the duty of the people to bear arms for their defense. In the Old Testament, the Israelites were frequently required to bear arms. Moses commanded the Gadites and the Reubenites to arm themselves and go into battle.36 This duty was also enforced by Nehemiah who required the people to carry weapons while they worked.37 In fact, some of the citizens worked with one hand and held a sword in the other.

The New Testament also upholds this duty to bear arms. Jesus never repealed this duty, rather, he upheld it. On one occasion, Jesus commanded the disciples to acquire swords; if they did not have one, they were to sell their cloaks and buy one.38

This duty to bear arms was the Biblical precedent. Conversely, "weapon control" was equivalent with slavery. On two occasions, foreign nations kept the Israelites from bearing arms. As a result, these enemies were able to keep Israel in bondage.39 The right and duty to have arms was essential to preserving liberty.

This duty was stressed by many of the eighteenth-century pastors. For example, Simeon Howard, preaching on the subject of the liberty that Christ has given man (Galatians 5:1), encouraged his listeners to be armed for their defense: "A people who would stand fast in their liberty, should furnish themselves with weapons proper for their defense, and learn the use of them."40 Another pastor asserted that man's sinful nature "renders this knowledge [of the use of arms] absolutely requisite, to protect a country against bands of public robbers and murderers."41

A Well Regulated Militia

A second method of self-defense lies in the collective form of a well-regulated militia. In the first chapter of Numbers, one sees that Israel has no professional, "standing" army. Instead, the defense of the nation rests in the hands of the militia, a citizen-army composed of every male over 20 years of age.42

Self-defense, however, is not the only principle embodied in the militia. Equally important to understanding the nature of this citizen-army is the principle of self-government. First, the militia is a collection of individuals who, as a function of self-government, have covenanted together to defend each other. Whenever people enter into society by way of a social compact, they not only become "one People" as stated by the Declaration, they also take on certain obligations, one being the duty to defend one another.43 Every citizen in society has a covenant duty to defend his neighbor — a duty which can be adequately fulfilled in the militia.

Second, the principle of self-government is further reflected in the organization of the militia powers. The Declaration asserts that the people can organize the powers of government "in such Form, as to them shall seem most likely to effect their Safety and Happiness." The militia is a particular way of "organizing" the sword of vengeance so that everyone in the nation, as opposed to a select minority, can bear the sword. There are two advantages to this system. First, the inside-out principle of self-defense is preserved because everyone is required to defend the country. Second, by placing the sword of vengeance into the hands of everyone, the militia becomes an effectual defense against the tyranny of a select few. Of course, a citizen can only bear the sword of vengeance while on official, militia duty. At that point, he is "deputized" and can wage war on the enemy. He is not limited to mere self-defense; he can go on the offensive by either launching a preemptive strike (only for a just cause) or attacking a retreating enemy in battle. In short, the militia combines the sword of self-defense and the sword of vengeance into one body.

In 1790, Jonathan Homer published a sermon on the Israelite militia:

OF ZEBULUN SUCH AS WENT FORTH TO BATTLE, EXPERT IN WAR, WITH ALL INSTRUMENTS OF WAR, FIFTY THOUSAND, WHICH COULD KEEP RANK: THEY WERE NOT OF DOUBLE HEART II Chronicles 12:331. The zeal of the tribe of Zebulun was conspicuous on the occasion. Fifty thousand of its citizens, with arms in their hands, marched to the capital. These appear to have been the flower of the militia. They were "such as went forth to battle. expert in war." . . . [T]hey were sufficiently trained to contend with the foes of their country. They were accordingly prepared to fight, should events require it.

They were not mercenary soldiers. . . . They were the freemen, the citizens of the state, who viewed their religion, their wives, their children, their property, involved in the liberty,4 he safety, and the regular government of their country.44

Having shown the Biblical model, Homer concluded that the militia was the best defense for the country. Quoting George Washington, he stated that,

"The Militia of this country must be considered as the palladium of our security, and the first effectual resort in case of hostility."45

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