This is the first in a new series, an expansion of my both my Natural Law column and Second Amendment and related columns. Here, I briefly examine the ancient and eternal theories behind the basic rights which gave rise to the doctrine enshrined in the Second Amendment.
Legal practitioners and law and political science scholars, along with the general public, many politicians, and the media, often make the common mistake of looking only to the text of the Constitution (State or federal) or recent court cases in order to gain perspective into the meaning and/or application of the Second Amendment (and related State protections). While government protection of our rights is vital (the only reason for government), rights do not come from government.
My examination here is theoretic in nature and, thus, seeks out existential sources which provide both definition and supporting argumentative and empirical evidence which are fixed throughout history and across all geographic areas. Of course, as my ultimate view is towards the American experience, I will pay closer attention to sources from Western civilization.
The Bible is replete with approval of self-defense. “If anyone does not provide for his relatives, and especially for members of his household, he has denied the faith and is worse than an unbeliever.” 1 Timothy 5:8. This would seem to encompass the responsibility to keep one’s family safe to the extent possible. “If a thief is found breaking in and is struck so that he dies, there shall be no bloodguilt for him, but if the sun has risen on him, there shall be bloodguilt for him. He shall surely pay. If he has nothing, then he shall be sold for his theft.” Exodus 22:2-3. This provision is the basis for the common-law doctrine against burglary, originally extended to night-time attacks. The matter of daylight adds an interesting perspective. Again, this passage addresses a thief, not a would-be murderer of rapist. It is divine commentary on the value of human life over mere possessions when an opportunity exists to examine the intent of a criminal. While it is not a prohibition against using force to deter a thief, the provision indicates the Lord’s wish that force not exceed the attendant circumstantial need.
Paul continues this theme of limited aggression in Romans 12:19: “Beloved, never avenge yourselves, but leave it to the wrath of God, for it is written, ‘Vengeance is mine, I will repay, says the Lord.'” Again, God does not seem opposed to immediate use of force to deter violence but, once danger has passed, he commands that we leave judgment to him. This is backed by the Old Testament: “Do not say, ‘I will repay evil’; wait for the Lord, and he will deliver you.” Proverbs 20:22. Again, for Christians, after the fact of a crime, the matter is God’s to handle. This is the basis for a general prohibition against vigilante justice.
In Romans 13, often mis-cited as a justification for any and all government action being divine, Paul extolls the virtues of political agencies instituted in God’s Name. When such an entity exists, then it has God’s authority to pursue prosecution of criminal matters. I refuse to accept that this concept applies to all governments – I doubt God approved of Hitler’s action, for instance. Rev. Chuck Baldwin, http://chuckbaldwinlive.com/home/, has extensively commented on this subject – http://www.romans13truth.com/.
Jesus Christ, himself, tacitly endorsed armed defense: “And let the one who has no sword sell his cloak and buy one.” Luke 22:36. I say “tacitly” because of the caveats Jesus placed on the use of force, essentially limiting it to only urgent circumstances. Christ urged us to “turn the other cheek” when possible. Matthew 5:39. He also admonished Peter to sheath his sword while repairing the injure Peter had inflicted with his sword. John 18:11. Jesus, while defending the 10 Commandments, issued an 11th: “love one another.” John 13:34. The Son’s words places strict constraints on the Father’s allowance of the use of force. It does not foreclose the concept.
(The ultimate Defender. Google.)
Jesus only once resorted to the use of force, personally. When He discovered the money-changers (the banksters of their time) abusing the Holiness of the Temple, Jesus violently drove them away. John 2:15. This underscores the possibility of defense as an immediate solution, without resort to formal authority or the eventual actions of the Lord. The Church has formally detailed both the right to such defense as well as the moral duty of such action in need. “Legitimate defense can be not only a right but a grave duty for one who is responsible for the lives of others. The defense of the common good requires that an unjust aggressor be rendered unable to cause harm.” Catechism of the Catholic Church (“CCC”): 2265 (emphasis added)(see also CCC: 1909).
The Church also commands dignity be afforded to the human body, generally: “This dignity entails the demand that he should treat with respect his own body, but also the body of every other person, especially the suffering” CCC: 1004. While this backs the general prohibition against unlawfully harming others, it also reminds the Believer to respect even his enemy and attempt to limit his forcible response to criminal activity as far as possible to minimize harm.
“… [I]n the case of legitimate defence, in which the right to protect one’s own life and the duty not to harm someone else’s life are difficult to reconcile in practice. Certainly, the intrinsic value of life and the duty to love oneself no less than others are the basis of a true right to self-defence. The demanding commandment of love of neighbour, set forth in the Old Testament and confirmed by Jesus, itself presupposes love of oneself as the basis of comparison: ‘You shall love your neighbour as yourself’ (Mk 12:31). Consequently, no one can renounce the right to self-defence out of lack of love for life or for self.” Pope John Paul II, Encyclical Letter Evangeliun Vitae (The Gospel of Life), 1995.
The eminent scholar, David Kopel, has documented the general agreement among Eastern Religions along these ideas. In his review of Confucianism, Taoism, Hinduism, Sikhism, Jainism, and Buddhism, Kopel explodes common myths that these religions do not allow for proper use of self-defense. David B. Kopel. “Self-Defense in Asian Religions” Liberty Law Review 2 (2007): 79, 80-81 (http://works.bepress.com/david_kopel/20).
Kopel’s expose is excellent. He also touches on the Eastern version of Baldwin’s critique of Romans 13: “Although Confucianism, like most other religions, has been used by tyrants to claim that revolution is immoral, Confucius himself ordered a revolution against an oppressive regime.” Id, at 163. Only the “religion” of the State would decree that the government is above the Natural Law.
Commenting on Exudus 2, above, Saint Thomas Aquinas said, “it is much more lawful to defend one’s life than one’s house. Therefore neither is a man guilty of murder if he kills another in defense of his own life.” Aquinas, Summa Theologica.
“If a man, in self-defense, uses more than necessary violence, it will be unlawful: whereas if he repel force with moderation his defense will be lawful, because according to the jurists, ‘it is lawful to repel force by force, provided one does not exceed the limits of a blameless defense.’ Nor is it necessary for salvation that a man omit the act of moderate self-defense in order to avoid killing the other man, since one is bound to take more care of one’s life than of another’s.” Id.
Plato noted that when one acts in true self-defense, taken as a natural right, one may actually do the criminal perpetrator (in addition to the victim and society) a service: if the criminal survives, he may reflect on his wrongdoing positively. Plato, The Republic, The Problem of Justice. Plato’s great student, Aristotle, agreed. Aristotle noted that a true case of self-defense is not necessarily a voluntary action. Thus, any suffering from the act of defense may be attributed to the aggressor and not the defender. Aristotle, Nicomachean Ethics.
The possession of weapons and their defensive usage, though regulated, was allowed in both the Roman Republic and the Empire. “We grant to all persons the unrestricted power to defend themselves, so that it is proper to subject anyone, whether a private person or a solider … to immediate punishment in accordance with the authority granted to all [up to, and including, death, if warranted].” Codex Justinianus 3.27.1. The Romans regarded the right to use weaponry in defense as implicit to the right itself.
The mighty Cicero opined: “There exists a law, not written down anywhere, but inborn in our hearts; a law which comes to us not by training or custom or reading but by derivation and absorption and adoption from nature itself; a law which has come to us not from theory but from practice, not by instruction but by natural intuition. I refer to the law which lays it down that, if our lives are endangered by plots or violence or armed robbers or enemies, any and every method of protecting ourselves is morally right.” Cicero, “In Defence of Titus Annus Milo,” Selected Speeches of Cicero, Michael Grant translation, 1969. Again, the esteemed David Kopel gives excellent analysis to this ancient Natural Law position in The Sword and the Tome, America’s 1st Freedom, NRA, 2009.
Cicero’s titanic predecessor, the black-robed Cato, made an interesting analogy along the lines of Jesus’s act of retribution noted above (as noted by Cicero himself): Cato was asked by an ambitious Roman, “What is the most profitable about property?” Cato answered, “To raise cattle with great success.” The young man then asked, “What is the second most profitable?” Cato answered, “Raising cattle with moderate success.” The inquirer pressed again, “The third most profitable?” “Raising cattle with little success.” Finally, the young man cut to his presupposed profession, “How about money-lending?” Cato answered (somewhat in advance of Jesus), “How about murder?” Cicero, On Duties.
I by no means equate money-lending or banking with murder but it appears the subject was considered by multiple ancient sources. It seems the evil of the banksters in as eternal as natural law. Defense against the predation of this wicked class may be something to consider.
Later political theorists expounded the virtue and necessity of self-defense. John Locke described self-defense as the first among Natural Rights. Locke, Second Essay on Civil Government. Hobbes concurred in this assertion, regardless of the state of any society. Hobbes, Leviathan, 1651. Even the craven and generally useless United Nations begrudgingly attempted to acknowledge this fundamental truth: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” Universal Declaration of Human Rights, U.N. General Assembly, Article 12, December 10, 1948.
In the earliest American tradition, we find acknowledgment of the Natural Law (before the adoption of the Second Amendment). The Declaration of Independence (1776) begins: “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” (Emphasis added). The Declaration then enumerates the crimes of King George, among them many of which might be defended against under the doctrine explained herein.
(In case of emergency only. Google.)
Again, self-defense is a God-given, eternal right. It is also a duty, one to be exercised only in dire need and with a grave sense of responsibility. As with all matters of Natural Law, man-made legislation must attempt as closely as humanly possible to approximate the divine purposes of the Law. In the next installment of this series, I intend to examine more ancient legislation regarding weapons and self-defense, specifically Roman Law.