Book review: Halbrook's "That Every Man Be Armed" - IMPORTANT!

[Jim March]

Stephen Halbrook:

"That Every Man Be Armed".

Recently republished in large paperback by The Independent Institute, see also:
http://www.independent.org/tii/catalog/cat_TEMBA.html

Stephen Halbrook is the lead attorney in the Federal gun case "US vs. Emerson", currently being debated at the 5th Circuit in New Orleans.

In this 1984 work, Halbrook lays out the entire history of the Right to Keep and Bear Arms (RKBA) including the influences on the founders going back to Aristotle, then examines the actual intent of both the founders and the creators of the 13th and 14th amendments. It then examines the court history of the right since the US Civil War.

It's written for the layman, but contains the kind of extensive footnotes and references necessary to use it as "courtroom ammo" or a research tool to back trial actions, including a separate index of court cases. Written in 1984, it's far from obsolete - more recent scholarship from Judge Cummings in Texas in the original Emerson decision, and work by liberal law scholars Akhil Reed Amar and Lawrence Tribe have strengthened it's arguments to an extraordinary degree.

Used properly, it could be the core of what we need to turn the whole game around, especially when combined with Lott-style research and evidence.

A) The RKBA from ancient Greece to 1774.

Plato believed in an "enlightened dictatorship" backed by an elite, aristocratic armed force. The commoners weren't supposed to "have" to worry about politics. This is of course an oversimplification but not too extreme.

Aristotle begged to differ. He considered a generally armed population a guarantee against both local tyranny and invasion. He also spoke clearly of the dangers of mercenary armies, that they can get cantankerous in a hurry. And professional locally-raised armies are little better because they can get too attached to a charismatic general.

The ultimate example of these fears turning very real was the insurrection by Julius Caesar. As a general, he took his professional army off trampling Spain and elsewhere. That was acceptable under Roman law, but Rome was still a Republic, with a representative Senate and defended by a citizen militia. Pro armies weren't allowed anywhere near Rome, so when Caesar came home, the moment he brought his army too close he was in violation of Roman law and it triggered a civil war. (The geographic boundary he crossed into illegality was the Rubicon River, hence the phrase "crossing the Rubicon" to describe a "point of no return".)

One of the main historians the founding fathers paid attention to in such recounting of classical period politics was Machiavelli, best known today for "The Prince". We think of his name today as being synonymous with "convoluted tricky politics" but in reality he was strongly in favor of personal liberty. He too argued in favor of a part-time citizen militia as being far more of a force for freedom than either mercenaries or a professional peacetime standing army. He wasn't all talk, either - he was elected Captain of a militia company in Florence at one point and led them into battle with excellent results.

A major turning point in the RKBA was the English civil war, culminating in the English Bill of Rights of 1688. This document gave Protestant commoners a total of TWO listed civil rights: the right to keep and bear arms, and the right to petition for redress of grievances that made it's way into the 1st amendment.

It's extremely important to understand that in the years between 1688 and 1774, the RKBA so enshrined was violated in three different major ways by English kings and courts:

1) At various times, handguns smaller than one yard were banned. If anybody thinks the "CCW controversy" is something new, think again!!!

2) England had hundreds of different "game laws" that were mainly in place to preserve hunting as an aristocratic pastime only. Infractions were severely punished, sometimes with death. The real goal was to ensure that the peasantry didn't have an independent food supply. Laws preventing gun carry in support of such "game laws" were common; in a few cases it was even applied to home ownership of firearms (and crossbows). However, this didn't often get applied against home defense; in fact, even Catholics were allowed home defense guns; the way the right was most commonly interpreted, Catholics didn't have the right to be part of "the common defense", in other words, "the militia".

3) Bans on any armed group of more than five people were put forth at various times. Remember this; it's critical to understanding the intent of the 2nd Amendment.

B) The debates and intent behind the US Bill of Rights and the 2nd Amendment.

Taking their cues from Aristotle, Cicero, Machiavelli, Locke and Sydney (the latter two made required reading at the University of Virginia by order of Thomas Jefferson), the very term "Republican government" meant a whole set of concepts, representative government being just the start. Lack of a standing peacetime army was another key element, with the state's defense primary in the hands of a huge population of armed commoners practicing part-time if that.

The biggest argument the founders had to thrash out was whether or not to have a Bill of Rights at all! The people against such a document didn't have any problem with the rights in question; on the contrary, their fear was that if you listed explicit rights, later generations could interpret that as the WHOLE list of such popular rights. The 9th and 10th amendments were made to appease that faction.

Why is this important?

Because when you look at earlier versions of the 2nd Amendment as it was being debated, the phrase "the right of the people to keep and bear arms for their common defense shall not be infringed" appears frequently. Several early state Constitutions included the phrase "for the common defense" in their equivelent of the 2nd.

Remember the English infringement #3 above? The founders were trying to preserve a right to form private, ad-hoc armies at the will of whichever group of citizens so desired!!!

This was one radical bunch of revolutionaries here.

The "for the common defense" language got struck down because they didn't want the whole 2nd translated as enabling bans of individual personal defense. Remember the anti-BoR faction? Here's some of the same thinking - by reducing the 2nd to "bare necessities", they hoped to preserve as wide a possible interpretation as possible, enabling target shooting, personal defense, hunting, home defense and the ultra-radical "catch as catch can militia".

Now go back and read the 2nd again: "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" (written from memory, if I'm off a word somebody will sing out! <grin!>). The founders were trying to suggest to later generations that putting the state's defense in the hands of the general armed population is a GOOD idea. Elsewhere, Congress is given the right to raise armies so it was indeed possible for Congress to neglect the militia, which they did. But semantically, such failure wouldn't invalidate the "shall not be infringed" bit.

So what would a well-regulated militia look like? It would be a mixture of "well equipped" and "controlled". If you were between the age of 16 and 60 and male, you'd be able to score your own military-grade weapons and ammo of the type carried and used by an individual soldier, and you'd know where to go and who to report to if "the poop hit the fan" in any number of ways, including insurrection, invasion, riot, whatever. You'd have your officers pre-elected, there'd be a chain of command from them all the way to the president. Regular drills would be encouraged.

One final comment at this point not directly related to the book: under this view of the BoR, that it's a "set of examples", when the US Supremes created a "right to privacy" to support Roe vs. Wade, they were on stronger ground than most "strict constitutionalists" on the right give them credit.

Reconstruction and the 14th Amendment: altering the 2nd.

To understand the 14th amendment, you have to go back to the single most infamous US Supreme Court case in American history: Dred Scott vs. Sandford. The court ruled that those of African decent are not citizens, that the Bill of Rights doesn't apply to them and that slavery and the laws supporting it were just peachy.

As part of the "logic" supporting this stance, the Justice Taney described the effects of applying the BoR to blacks:

"If members of the African race were citizens, entitled to the privileges and immunities of citizens, they would be exempt from the special police regulations applicable to them…It would give to persons of the Negro race who were recognized as citizens in any one State of the Union, the right to enter every other state whenever they please, singly or in companies…and would give them the full liberty of speech…to hold public meetings on political affairs, and to keep and bear arms wherever they went."

The only way the legislature can overturn a Supreme Court ruling based on the constitution is to alter the constitution. There are procedures for doing exactly that, and shortly after the Civil War the 14th Amendment was crafted specifically to overturn Dred Scott.

That included the part of the decision stripping blacks of the RKBA.

In giving African-Americans "the privileges and immunities" common to all other members of the group "the people", the folks crafting the 14th knew very well they were restoring black's rights to arms and both personal and group defense.

As far back as 1796, Abolitionist St. George Tucker described Virginia law as banning the carry rights of all blacks "all but housekeepers, and persons residing upon the frontiers are prohibited from keeping, or carrying any gun, powder, shot, club, or other weapon offensive or defensive. Resistance to a white person…is punishable by whipping."

In discussing the proposed 14th amendment, the committees received numerous reports of systematic black disarmament throughout the former Confederate states. A "Report of the Commissioner of the Freedmen's Bureau" in Kentucky stated "…the civil law prohibits the colored man from bearing arms…" and:

"…their arms are taken from then by the civil authorities…Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed…"

Representative Sydney Clark, a Kansas Republican, attacked black-disarmament laws in Alabama and Mississippi during the debates on the 14th:

"Sir, I find that the Constitution of the United States an article which declares that "the right of the people to keep and bear arms shall not be infringed". For myself, I shall insist that the reconstructed rebels of Mississippi respect the constitution in their local laws…".

This is just a few examples of the pro-self-defense language used during the debates on the 14th amendment. Since Halbrook wrote this, "flaming liberal" law professor Akhil Reed Amar of Yale noticed the same thing in terms of the 14th amendment: that preservation of minority RKBA was a key reason the 14th amendment was created. And in almost all these discussions of the 14th, the RKBA is understood as a personal, individual right to self defense not directly connected to a "militia common defense" and for damnsure not connected to military service.

Guys, that's a breakthrough. It ain't just Federal gun control we can attack, it's state too, if the 14th transferred an individual RKBA right down to the states.

If you're serious about fighting bad self-defense-prohibition laws, you need this book. Because in summarizing the bits above, I made it to page 130ish. Counting the footnotes but not the index, it's 265 pages long.

Jim March
Equal Rights for CCW Home Page
http://www.ninehundred.com/~equalccw

[JHS]

http://www.broadcast.com/audiobooks/

If a person wants to hear it go to the above, then politics, go down to the H listings.
I am about half way thru-it.
Stay safe.
John

[Sodbuster]

I have the original 1984 hardback edition. Excellent summary of the book, Jim. Might I add that Machiavelli's "The Prince " is a great read also. And how about that Jefferson guy, requiring that Locke and Sydney be read. You don't see our political leaders today doing that.

------------------------------------

There is nothing stable in the world,
uproar's your only music.

-- Keats

[bookkie]

Halbrooks book is a must have for any serious 2nd library. I would also suggest getting a copy of the 2nd amendment primer put out by the NRA. It is shorter and not as well documented as Halbrooks, but it does a few newspaper articles from the period of ratification of the amendments that Halbrooks does not have. If I had my choice of only one..... there is no question it would be 'That Every Man Be Armed'.

[USP45usp]

I've noticed, as well as everyone here, that all the papers, writings, FACTS in the world will not save you from being put under the jail (and your property taken) if you dare try your Rights to KABA. That in today's society, the law of man supercedes all laws of Nature. If it were true that this administration really believed in the "rule of law" then NO gun crimes would be in the court system except for those that fall under other crime headers: Murder, Felon, Assult. If you have, carry (in any form) in any place then it would be legal. But, man's law has made it illegal in many areas and the way you carry is restricted.

In the way of carring, I see no reason why you have to have a permit to conceal carry. The only reason that I can see if for taxation only. Your Right is taxed, so therefore it's no longer a Right, subjected to federal or state approval. Each one of us has to go through a nics check now, the same check they use for permits (using fed and state records to see if you can have permission or not). Besides the taxation aspect, I guess that the permit system does allow for registration. Not of the actual firearm (unless it's in ny or another communist state which does list the firearm(s)) but of the person. The State LEO's and feds can check to see if you'd been given permission to carry. With this permission, they also know who you are, where you live and assumes that you are a firearm owner due to you wish to carry.

So, in essence, we (gunowners) are already under a type of defacto registration which we flock too readily. In order to use our Right to bear arms, we go and get this lamenated piece of paper. All the while, and paying for it, we are put into databases, our lives intruded upon, and are giving up the Right for the Priveledge to carry in the fashion we (and others) would be more comforable with.

And one last thing... besides arson and explosive materials, why do we have the atf? Alcohol, Tobacco (for the time being) and Firearms are all LEGALLY made products. Why do we have them? They (atf) are not a protective force such as the fbi but are cpa's, tax assesors with guns and a huge ego. I do remember one thing from my history lessons.. that statement made by the colonists when the tea tax got too high... you know, no taxation without representation. When did the Congress and Senate okay the atf? Or where they formed as a sub-member to the IRS? By what authority did they come into being? It's a taxation organization and I don't remember having my representatives voting for them.

USP45usp

[Jim March]

Ya, well, the problem with saying "we don't need no stinkin' permits" is that there's a huge body of 19th and early 20th century case law saying that carrying concealed can be banned, but open-carry can't be.

You need to score and read the whole book. He goes into these cases in some detail.

That case law can be beaten, but not easily and not soon. It will be one of the "last steps" we need to take. The first step, getting the Supremes to recognize an individual right, is in progress now with Emerson. The second step will be to get the 2nd recognized as incorporated against the states via the 14th, something Halbrook's book will be invaluable in performing.

The way to beat the old concealed-ban case law is to note three things:

1) Many of the states banning concealed carry also ban open carry...this includes California. So there's infringement going on.

2) Most of these concealed bans came out of the South, both before and after the civil war. A major effect, probably intentional, was that blacks practicing open-carry would become immediate sniper targets or subject to a lynching. The US Supremes ruled in 1986 (Hunter vs. Underwood) that laws with a historical racial intent should be subject to "strict scrutiny" in terms of societal need. A blanket-ban on all carry such as in Ohio or Wisconsin cannot meet that standard, nor can discretionary-issue such as in California. Shall-issue however *might*, it'd be a crapshoot.

3) Trying to promote legal open-carry as an alternative to CCW in strict compliance with the old case law would result in "mass sheeple freakout" and other negative effects. The courts won't want to go there today.

(Fighting discretionary issuance on equal protection grounds is a whole separate thing, a way of bypassing the entire RKBA issue. But from there, the best you can hope for is widespread FAIR issuance instead of "elitist BS". It takes you to shall-issue, in other words, not "Vermont carry" as you'd like.)

Upshot: shall-issue CCW is a politically feasible compromise that doesn't involve another decade or more of courtroom wrangling. While it's a nuisance, it does give you self-defense ability. If you're in a shall-issue state, bite the bullet and get the permit .

Jim