Antecedents of the Second Amendment
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University of Wyoming College of Law Law Archive of Wyoming Scholarship Faculty Book Chapters Faculty Scholarship 8-9-2019 Antecedents of the Second Amendment George A. Mocsary University of Wyoming - College of Law, [email protected] Nicholas James Johnson Fordham University - School of Law, [email protected] E. Gregory Wallace Campbell University - Norman Adrian Wiggins School of Law, [email protected] David B. Kopel Government of the United States of America - Independence Institute, [email protected] Follow this and additional works at: https://scholarship.law.uwyo.edu/book_chapters Recommended Citation Mocsary, George A.; Johnson, Nicholas James; Wallace, E. Gregory; and Kopel, David B., "Antecedents of the Second Amendment" (2019). Faculty Book Chapters. 3. https://scholarship.law.uwyo.edu/book_chapters/3 This Book Chapter is brought to you for free and open access by the Faculty Scholarship at Law Archive of Wyoming Scholarship. It has been accepted for inclusion in Faculty Book Chapters by an authorized administrator of Law Archive of Wyoming Scholarship. 16 1 2 3 Antecedents of the 4 5 Second Amendment 6 7 8 9 10 11 12 13 14 15 16 This is online Chapter 16 of the second edition of the law school textbook Firearms Law 17 and the Second Amendment: Regulation, Rights, and Policy (2d ed. 2017). The 18 printed book, by Nicholas J. Johnson, David B. Kopel, George A. Mocsary, and Michael P. 19 O’Shea, consists of Chapters 1 through 11. More information and additional materials 20 are available at https://www.wklegaledu.com/johnson-firearms-law-2. The printed book 21 may also be purchased from Amazon.com and Barnes & Noble (bn.com). The companion 22 website for the book is firearmsregulation.org. 23 The online chapters, by Nicholas J. Johnson, David B. Kopel, George A. Mocsary, 24 and E. Gregory Wallace, are available at no charge from either https://www.wklegaledu. 25 com/johnson-firearms-law-2 or from the book’s separate website, firearmsreglation.org. 26 They are: 27 28 12. Firearms Policy and Status. Including race, gender, age, disability, and sexual 29 orientation. 30 13. International Law. Global and regional treaties, self-defense in classical inter- 31 national law, modern human rights issues. 32 14. Comparative Law. National constitutions, comparative studies of arms issues, 33 case studies of individual nations. 34 15. In-Depth Explanation of Firearms and Ammunition. The different types of fire- 35 arms and ammunition. How they work. Intended to be helpful for readers who 36 have little or no prior experience, and to provide a brief overview of more com- 37 plicated topics. 38 16. Antecedents of the Second Amendment. Self-defense and arms in global histori- 39 cal context. Confucianism, Taoism, Greece, Rome, Judaism, Christianity, Euro- 40 pean political philosophy. (This chapter.) 41 42 Note to teachers: Chapter 16, like all of the online chapters (and like the printed 43 Chapters 1 through 11), is copyrighted. You may reproduce this online Chapter 16 without 44 charge for a class, and you may have it printed for students without charge. We ask that 45 you notify the authors of such use via one of the email addresses provided on the public 46 website for this textbook. Of course, you may choose to use only selected pages, and you 47 may supplement this chapter with materials you choose. However, this chapter may not be 48 electronically altered or modified in any way. 49 579 Electronic copy available at: https://ssrn.com/abstract=3433345 WK_FRRP_2020_Ch16.indd 579 Manila Typesetting Company 07/16/2020 11:31AM 580 16. Antecedents of the Second Amendment 1 Chapter 2 of the printed textbook examines the history of the United King- 2 dom’s right to arms; the rest of the book studies the right in the United States. 3 Occasionally the printed chapters discuss related laws from other nations, such 4 as Hungary’s Golden Bull (1222), which is similar to England’s Magna Carta 5 (1215). Yet debates about the legitimate use of arms and legitimate forms of 6 arms control long precede the invention of firearms, the English settlement of 7 America, or even the most rudimentary existence of “England” as a kingdom. 8 This Chapter provides a sample of the arguments that various philosophers 9 have offered for or against arms possession, and about appropriate constraints 10 on the use of arms. Many of the readings in this Chapter are part of the intel- 11 lectual background of the Second Amendment. These include material from 12 ancient Greece and Rome (Part B), the Judeo-Christian tradition (Part C), 13 and European political philosophy (Part D). Other material, especially Part A 14 on ancient China, was unknown to the Americans who adopted the Second 15 Amendment. Yet the same questions that concerned Confucians and Taoists 16 have been at issue throughout history. 17 One key issue is personal ethics. Is it moral to use force, or deadly force, in 18 self-defense? Does the answer depend on whether the attacker is an individual 19 criminal or a governmental tyrant? 20 The other major question is the distribution of force. Because arms greatly 21 amplify the user’s physical force, should government have a monopoly on arms 22 possession and use? Or should arms be broadly distributed among the population? 23 Each system has benefits and dangers. Chapter 2 describes how distributionism was 24 a sine qua non for England’s maintenance of its independence for many centu- 25 ries. But in the twentieth century, English policy moved strongly toward centraliza- 26 tion. (Online Chapter 14.C.1 details modern English policy.) Chapters 3 through 27 7 describe how American policy, from colonial days to the present, has generally 28 been distributionist, based in part on the view that England was insufficiently so. 29 This Chapter steps away from the United States and the United Kingdom 30 to consider how some great minds outside the Anglosphere have thought about 31 the distribution of force. 32 One theme of this Chapter is the benefits and dangers of militias versus 33 standing armies. Standing armies consist of full-time soldiers, usually but not 34 always armed by the state. In contrast, a militia consists of soldiers who only 35 serve for part of the year or in situations of necessity. The rest of the time, they 36 maintain their civilian occupations as farmers, merchants, and so on. Usually 37 they supply their own arms. A select militia is a hybrid in which militiamen are 38 drawn from a small segment of the population, spend more (perhaps all) of 39 their time soldiering, and may depend on their militia pay for their livelihoods. 40 41 42 43 A. The Early Far East 44 45 46 1. Confucianism 47 48 There is no evidence that Framers of the Second Amendment were familiar 49 with the Confucians or Taoists. Yet the Chinese and Framers, like many other Electronic copy available at: https://ssrn.com/abstract=3433345 WK_FRRP_2020_Ch16.indd 580 Manila Typesetting Company 07/16/2020 11:31AM A. The Early Far East 581 people, faced the same challenge: allocating power, while avoiding the dual 1 perils of too little government or too much. So Confucians and Taoists wrote 2 about issues such as resistance to tyranny, just warfare, militias, and arms ethics. 3 “Confucius” is an imperfect translation of “K’ung-tzu,” or, in English, 4 “Master K’ung.” The most important collection of Confucian sayings is the 5 Analects. 6 7 8 The Analects of Confucius 9 Simon Leys trans., 1997 10 11 “To govern a state of middle size,” the ruler should “mobilize the people only 12 at the right times.” (Analects 1:5). The Master said: “The people need to be 13 taught by good men for seven years before they can take arms.” The Master 14 said: “To send a people to war that has not been properly taught is wasting 15 them.” (13:29-30). 16 The Master said: “A gentleman avoids competition. Still, if he must com- 17 pete let it be at archery. There, as he bows and exchanges civilities both before 18 the contest and over drinks afterward, he remains a gentleman, even in com- 19 petition.” (3:7). 20 In archery, it does not matter whether one pierces the target, for archers 21 may be of uneven strengths. Such was the view of the ancients. (3:16). 22 The Master fished with a line, not with a net. When hunting, he never shot 23 a roosting bird. (7:27). 24 The Head of the Ji Family was richer than a king, and yet Ran Qiu kept 25 pressuring the peasants to make him richer still. The Master said: “He is my 26 disciple no more. Beat the drum, my little ones, and attack him: you have my 27 permission.” (11:17). 28 29 30 1 MENCIUS 31 32 Mencius was the most influential developer of Master K’ung’s thought. He 33 lived from about 371 to 289 B.C., a period when rival Chinese states were adopt- 34 ing the principles of the Legalist philosophers. The Legalists favored extremely 35 centralized governments with rigidly applied laws. The Legalist states were very 36 militaristic, aiming to regiment the peasants into armies made for wars of con- 37 quest. Eventually, the state of Ch’in, which had gone further than any other in 38 adopting Legalism, conquered all of China, ruling it from 221 to 207 B.C. The 39 Legalists, like the Utilitarian philosophers of nineteenth-century Great Britain, 40 41 42 43 44 1.