Journal of Criminal Law and Criminology (Northwestern)
77 (1986): 260.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT. By Stephen P. Halbrook. Albuquerque: University of New Mexico Press, 1984. Pp. 265. $19.95.
Although it is one of the constitutional provisions that citizens and politicians argue about most, the second amendment heretofore has never been the subject of a scholarly treatise that is both comprehensive and in-depth and that is, in addition, based primarily on original sources. Stephen P. Halbrook's That Every Man Be Armed is the first such book.
Halbrook holds a law degree and a' doctorate in social philosophy and does an excellent job of integrating the two disciplines as he traces the amendment from its roots in ancient Greece and Rome through modem court decisions.
Because of the controversial nature of gun control, thoughts on the second amendment have become polarized into two positions. The differences center on the -interpretation of the words "the people" and "well regulated militia."' Gun control advocates take what has been termed the "collective rights" approach, which holds that the amendment confers no rights on individuals; the provision is seen as protecting the right of state governments, which represent "the people" collectively, to maintain a National Guard (i.e., "a well regulated militia"). Those who believe in an individual rights approach, in contrast, contend that "the people" is composed of numerous individuals who have an individual right to keep and bear arms independent of any state militia or National Guard. To them, [Page 261] a "militia" is composed of citizens who will bring their own arms and form organized and disciplined (i.e., "well regulated") resistance units should the need arise. That Every Man Be Armed clearly supports an individual rights approach.
Approximately one-fourth of the book is devoted to examining the political and legal thought that influenced the Founding Fathers. The analysis begins with Plato and Aristotle, moves to Machiavelli and then to later theorists such as Hobbes, Locke and Sidney.
Halbrook finds that pre-revolutionary British common law, the 1689 English Bill of Rights, Blackstone and many other sources support an individual right to keep and bear arms for individual and collective self-defense. These rights flow from the natural right of personal self-defense and the political right of the people to protect themselves from foreign aggressors and governmental oppression by a standing army. In contrast to these common law rights were various statutes and proclamations by which various governments sought to disarm their political and religious -enemies.
American revolutionaries and the Founding Fathers claimed British common law rights and rejected oppression by King and Parliament. British attempts to disarm the colonists brought home the importance of individual arms ownership. Anticipating violent confrontation with Britain's standing army and government-controlled (i.e., "select") militias, some Americans, including George Washington and George Mason, began forming their own local militias. In 1775 when George Mason wrote of a "well regulated militia," he, like Machiavelli, was referring to able-bodied citizens who organized themselves into military companies in which each individual furnished his own arms. According to Halbrook, those who drafted and approved the second amendment intended to confer on individuals a right to have their private arms so that they could organize such militias.
Halbrook contends that the term "the people" in the amendment does not refer to the states or to the people collectively. The same two words are also used in the first, fourth and ninth amendments and clearly refer there to individual rights. Further, the tenth amendment refers to both the states and the people, indicating that the drafters could, when necessary, distinguish the two.
Halbrook moves on to the fourteenth amendment after discussing court opinions and commentary from the first half of the nineteenth century (which he finds overwhelmingly supportive of an individual rights interpretation). Halbrook's analysis of the debates over the amendment and the contemporary political climate-in- [Page 262] cluding radical republican sensitivity to the disarming of freedmen by the Klan and southern state governments-leads him to conclude that those who drafted and approved the fourteenth amendment believed that the second amendment conferred individual rights, and that the fourteenth amendment was intended to make those individual rights secure from state infringement. Thus, after passage of the fourteenth amendment, both federal and state gun control laws had to meet second amendment requirements. Halbrook, however, provides very few specifics as to how far state and federal governments may go in regulating arms and ammunition.
A review of the handful of U.S. Supreme Court cases dealing with the second amendment shows that, there is much ambiguity, some sloppy research and little in-depth analysis of the historical and philosophical background., We are still awaiting a definitive ruling on the core meaning of the amendment.
Although Halbrook generally makes a clear and convincing case, many readers might prefer that he more frequently and directly address the points of those who have taken a contrary position. He does this only occasionally in the book. For instance, to those who argue that an individual right to keep and bear private arms would be dangerous and ineffective to prevent oppression, Halbrook responds that even if that were true, the "Founding Fathers may be overruled only by a constitutional amendment" (p. 194). After analyzing a federal court decision cited by many with opposing viewpoints, Halbrook convincingly shows that the opinion "falls below the undergraduate level in scholarly standards" (p. 189).
If, as Halbrook contends, the time is ripe for the U.S. Supreme Court to take a fresh look at the second amendment, instead of attempting to reconcile the ambiguous case law, the Court cannot, in an intellectually honest manner, ignore That Every Man Be Armed. One need not, however, be a legal scholar to follow Halbrook. His book is suitable for a much wider audience than most law review articles on the subject.
The relatively short length of this book belies the tremendous amount of time and effort that must have been put into it. Halbrook's assertions are well documented and he has uncovered important new material. On a topic such as this, where opinion is largely polarized, one can expect a rejoinder to That Every Man Be [Page 263] Armed. We will all benefit if future works rise to the level of scholarship established by Dr. Halbrook.
Raymond G. Kessler
Department of Criminal Justice
Memphis State University
1. 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." U.S. CONST. amend. II.