by Stephen P. Halbrook. Oakland: The Independent Institute, 2008. 448pp. Paper $19.95. ISBN: 13: 978-1-5666 3971-2Reviewed by Raymond G. Kessler, Department of Criminal Justice, Sul Ross State University. E-mail: rkessler [at] sulross.edu
pp.92-97
The Second Amendment and gun control issues are among the most hotly debated issues in contemporary America. Halbrook’s approach is to discover the answer to the question of what did the Amendment “mean to the Founders?” (p.1). This book clearly falls into the category of “originalist” approaches to constitutional interpretation (see Barnett 1991). Under Halbrook’s “original intent” version of originalism, the constitution is to be interpreted consistently with the interpretation given by the drafters. Another version of “originalism,” focusing on what voters in the ratification process would have thought the proposed amendment provided (“original meaning”), was adopted by the U.S. Supreme Court in its landmark decision, District of Columbia v. Heller (2008). An originalist approach was also presented by David E. Young (1991) in his impressive, lengthy, collection of contemporary documents (1787-1792), The Origin of the Second Amendent. The two originalist approaches are, of course, similar and very often rely on the same sources. Halbrook, Young (1991), and the Court, although perhaps using different versions of “originalism,” reach the same general conclusions.
Halbrook, Young (1991), and the Court adopt what is known as the “individual rights” interpretation of the Second Amendment. The right belongs to individuals, even if they are not connected with an official militia. The term “people” refers to individuals, who may or may not be part of a militia. According to Halbrook, the two other main interpretations of the Amendment are the “collective rights,” and the “sophisticated collective rights” approaches. In the former, the right is one of the states to arm their militias. The term “people” in the Second Amendment is deemed to refer to the people in their collective or government capacity. In the latter, the right belongs only to formal members of official militias and only to the extent that these organizations do not provide arms. “People” means militia members who are not provided with arms by the government.
Halbrook’s book covers the relevant history from 1768 until the 1820’s. He presents much strong historical evidence that supports the individual rights approach.
The first four chapters deal with a relatively little-known aspect of the American Revolution – British efforts to disarm the rebellious colonists and keep them from obtaining arms and the gun powder necessary for such arms. The colonists and their leaders, many of whom would become “Founders,” or “drafters” (hereinafter “colonists”) [*92] vehemently argued that such measures violated their common law and natural law rights as individuals to have weapons for defensive purposes. This was a right to have weapons not only for personal self-defense, but also to defend against government oppression. British occupation, arms embargoes and searches and seizures were strongest in Boston – the main hot-bed of protest and revolution. The colonists distrusted British officials, and they lacked representation in Parliament. Many charges of brutality were leveled against the British occupiers of Boston.
The individual right to have arms for self-defense, according to the rebellious colonists, “extended not just to individual preservation, but also to collective resistance to oppression” (p.20). Halbrook writes (p.20, emphasis supplied):
Quoting freely from William Blackstone, [Samuel] Adams [1769] assessed the results of the Glorious Revolution of 1688:
At the revolution, the British Constitution was again restor’d to its original principles, declared in the bill of rights; which was afterwards pass’d into a law, and stands as a bulwark to the natural rights of subjects. “To vindicate these rights, says Mr. Blackstone, when actually violated or attack’d, the subjects of England are entitled first to the regular administration and free course of justice in the courts of law – next to the right of petitioning the King and parliament for redress of grievances – and lastly to the right of having arms and using arms for self-preservation and defense.” These he calls “auxiliary subordinate rights, which serve principally as barriers to protect and maintain inviolate the three great rights of personal security, personal liberty and private property”: And that of having arms for their defense he tells us is “a public allowance, under due restrictions, of the natural right of resistance and self-preservation when the sanctions of society and laws are found insufficient to retrain the violence of oppression.”[Adams then ties this individual defensive right in with the revolution.]
How little do those persons attend to the right of the constitution, if they know anything them, who find fault in the late vote of this town [Boston], calling upon the inhabitants to provide arms for their defense at any time; but more especially, when they had reason to fear there would be a necessity of the means of self-preservation against the violence of oppression.
Chapter Four deals with the famous 1775 “shot heard round the world,” the battles of Lexington and Concord. These battles marked the beginning of the war. British Army regulars were under secret orders to march out of Boston to the towns of Lexington and Concord and seize military arms and supplies being collected and stored there by revolutionaries. Armed conflict broke out and the British were forced to withdraw.
Chapter Five addresses both how the colonists viewed their rights to arms in the context of a revolution, and the right to revolution. The rebels believed they had a right to revolution because they were denied representation in British government, and that government levied harsh taxes and infringed on their fundamental or natural law rights. The right to keep and bear arms had two dimensions. It was not only a right of defense against criminals, as described by Blackstone in his 1765 Commentaries (Volokh 2012); it was also a right that could be exercised against a tyrannical government which did not allow representation. It is this well-established first dimension of this right that is often lost in the debate. Chapters 4 and 5 clearly demonstrate the importance of a right to bear arms to colonial rebels. According to Halbrook, the uprising “evolved from a defensive war” against British denial of rights and seizure of arms “to a war for independence” (p.126).
The Sixth chapter then traces developments in the seven states that adopted their own constitutions during 1776. In chapter Seven, he traces developments in the other six colonies that adopted constitutions later, whether during the war, or after. Some of these new Constitutions had no specific, separate Bill of Rights. As in later debates, there are frequent references to “militias” and “standing armies” in these documents, and in the general debates. At that time, the militia was composed of private individuals who brought their own personal arms to form the militia. These arms were kept for self-defense and hunting, but were to be used for military purposes when the owner was in militia service. In that historical context, the pre-existing, natural law, individual right to have arms for defensive purposes was essential to the existence of the militia. The militia, in turn, was seen as making a large, potentially oppressive national standing army irrelevant. If the individual right could be infringed, and the government managed to disarm the people, their ability to resist oppression would be virtually destroyed. The deterrent effect of an armed populace would be lost.
Those rejecting the individual rights theory often argue that the term “bear” arms, “guns” or “weapons” is limited to militia or military use. Here, and in the final chapter, Halbrook quotes from a number of sources from the late 1700’s where the term “bear” is not used in a military context.
The framing of the U.S. Constitution, and the controversy over the lack of a Bill of Rights, are the topics of chapters 8, 9, and 10. Halbrook presents a number of quotations where the lack of an individual right, which coincidentally in turn is necessary to have a militia, is seen as one of the rights that needs to be in the Bill of Rights. For instance, the New Hampshire convention suggested an amendment stating that “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion” (p.213). Also included are references where “people” and “rights of the people,” are clearly distinguished from government and the powers of government.
One of the most crucial chapters is that addressing the drafting of the Bill of Rights. Halbrook makes a number of points supporting the individual rights interpretation. The original proposal and presentation by Madison clearly suggest that the Second Amendment creates an individual right. Halbrook states that “no writing from this epoch has been found which states that what became the Second Amendment did not protect a personal right to keep and bear private arms” (p.258).
The struggle to ratify the proposed Bill of Rights continued until 1791. A number of states adopted new constitutions during this period. These are the subjects of the chapter 13. Records of the Debates in the states on both constitutions are very skimpy. However, Halbrook contends that these records clearly suggest that an individual right was intended. Natural rights theory was a central part of the debates. Again, the individual right to keep and bear arms for defensive purposes would contribute to a well-regulated militia, which was seen as necessary to offset the pressure for a large standing army. State constitutional provisions were also assumed to reflect the thinking on the issue at that time. Halbrook, for instance points to the Pennsylvania constitution which provided that the “right of the citizens to bear arms in defense of themselves and the state shall not be questioned” (p.292). This provision is especially noteworthy because it expresses the natural law right to have arms for self-defense and the contemporary needs of the militia. It also uses the term “bear arms” in both the civilian and military contexts.
Much confusion and controversy has resulted from attempts to interpret the Second Amendment debates over individual rights, the militia, and the fear of standing armies and their threat to freedom. Halbrook attempts to sort this out in chapter 14. Many in the founding generation argued that a “well-regulated militia” made a large standing army unnecessary. An armed citizenry was also seen as necessary to deter federal oppression. Shortly after ratification of the Bill of Rights, Congress passed the federal Militia Act of 1792. Some argued that the federal government should provide arms for the new federal militia which was to be composed of free able-bodied white male citizens between the ages of 18 and 45. Although one of the militia clauses in the Constitution (Art. I, sec. 8, cl. 16), provides that Congress shall have the power to “provide for organizing, arming and disciplining the militia,” Halbrook notes that many at the time concluded that the power to arm the militia meant only a power to specify a standard caliber. Congress agreed that the federal government should not provide the arms. The statute provided that every citizen in the militia was required to “provide himself with a good musket or firelock . . .” (p.307). Because most citizens were armed anyway, and had a constitutional right to their individual arms, this was seen as a workable system. Keeping and bearing arms was not only a right, it was also a duty. This duality may have contributed to later confusion about the Second Amendment.
In chapter 15, Halbrook presents later writings by some of the Founding Fathers and writers of early American legal treatises. Among these discussed are St. George Tucker, Tench Cox and William H. Sumner. All of these sources support the individual rights interpretation.
One of the most valuable and convincing chapters is the final one in which Halbrook analyzes the language [*96] in the Bill of Rights, and the meanings the words had for the colonists. Recall that the Second Amendment provides: “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.” He notes that individuals have “rights” and states have “powers.” The language “the right,” indicates that the right is a pre-existing (natural law) right, not one granted by the government. As the federal militia act suggests, the “militia” is composed of only one part of the “people.” The words “right of the people” are also used in the First, Fourth and Ninth Amendments. In those Amendments, the word clearly refers to individual rights, not rights that can only be exercised in some collective fashion. The First Amendment “right of the people peaceably to assemble and to petition the government for redress of grievances,” is not to the contrary. Individuals “assemble.” This is an individual right to engage in a collective activity. Further the Tenth Amendment uses both the term “people” and “states” in the same sentence. If the two were synonymous, the Framers would not have used both terms. The word “bear” in conjunction with “arms,” was not limited to military purposes. At that time, “a well-regulated militia” meant one in which the individuals provided their own arms but were subject to training and discipline. A “free state” is a republican polity, not a state in the union. More importantly, he concludes that the militia clause does not limit or extinguish the rights clause. The rights clause is open-ended, and is a right of the “people,” not the states or just militia members. There are two separate themes in the Second Amendment; the pre-existing natural law right of individuals to have arms for defensive purposes, and the late 1700’s militia/standing army problem. Recognizing the pre-existing individual right helps assure that the militia will have arms. Halbrook also analyzes the militia clauses in the body of the Constitution and other related concepts. This is perhaps the most persuasive chapter of the book.
While the pieces of the puzzle are all there, readers would have benefited from a summary chapter and a clearer and more detailed exposition of certain topics such as pre-existing and natural law rights and the right of self defense, and how it all fits together. Further, perhaps Halbrook should have addressed arguments to the contrary and evidence which seems inconsistent. It may also have contributed to clarity if there had been more discussion of Blackstone’s Commentaries (1765-1769) and their importance. This book was the closest thing to an American legal “Bible” possessed by the colonists. It was widely cited in that day, and is still cited by the U.S. Supreme Court and legal writers. In that work, the common law or natural law rights of British citizens are presented. Ten years before the American Revolution, Blackstone noted the traditional existence of a fundamental or natural law right of self-defense or self-preservation, and an auxiliary right of keeping and bearing arms “for self-preservation and defense” (Volokh 2012). These points are noted by Halbrook (p.20), and to a lesser extent elsewhere, but the topic deserves more discussion. Once armed rebellion broke out, the emphasis on this natural law right shifted from individual self-defense against crime to an individual right to defend against an oppressive government. That latter right, according [*97] to the colonists, a right to revolution. Later, when the militia-standing army debate became prominent, these individual rights were understood and assumed by the debaters. The natural law rights got lost in the heated debates over the militia. It is thus understandable that analysts assume the Second Amendment contains only one thread (militias v. standing armies) and miss the older natural law “right of the people” thread.
Of course, one book cannot cover everything, and there are enough quotations from important, relevant sources to give credibility to Halbrook’s conclusions. His credibility is also enhanced by his background. Stephen P. Halbrook has both a J.D. and a Ph.D. in Social Philosophy. He is one of the nation’s leading writers and litigators on the Second Amendment (see Halbrook 2012). However, discerning the intent of people who lived over 200 years ago is never an easy task, and much of the material has been interpreted by others in a different fashion. Halbrook’s book is not a clincher, although the final chapter (“What Does the Second Amendment Say?”) helps it come close.
This book was first released in 2008; this is the newly released paperback. There has been no second edition, although Halbrook has continued to write and litigate on the Amendment and gun control issues. There has been a lot of material published since then. However, Halbrook covers the fundamentals and this book remains as timely as ever.
Despite this reviewer’s nitpickings, this is an impressive and thoroughly researched and documented work. It is one the best scholarly books available on the topic. Of course, for many readers, this book is no longer the definitive exposition of originalism and the individual rights model. Justice Scalia’s majority opinion in Heller has succeeded it. On the other hand, this book is much more readable than a U.S. Supreme Court opinion. Legally-inclined readers wanting to see an alternative “originalist” analysis should consult Justice Stevens’ dissent in Heller .
REFERENCES:
Barnett, Randy E. 1999. “An Originalism for Non-Originalists.” Loyola Law Review 45: 611-690.
Halbrook, Stephen. 2012. “Profile.” Accessed Dec. 10, 2012. http://www.stephenhalbrook.com/profile.html#4.
Volokh, Eugene. 2012. Willian Blackstone’s Commentaries on the Laws of England (1765). Accessed Dec. 30, 2012. http://www2.law.ucla.edu/volokh/beararms/comment.htm#BLACKSTONE
Young, David E. 1991. The Origin of the Second Amendment. Ontonagon, MI: Golden Oak Books.
District of Columbia v. Heller, 554 U.S. 57 (2008)
