Posted by: mattcolvin | March 10, 2011

Does Talk About Rights Make Sense in a Non-Christian State?

Kingship was a Christian institution in medieval England, so we should expect that the origins of certain rights will be found in the God-given expectations for how kings and subjects are to relate. This is true of the right to petition for a writ of habeas corpus, a right if subjects which is the flip side of the king’s right to know why one of his subjects is being detained. It might also be true in the case of the right to bear arms. Henry II’s insistence that his subjects own firearms, and especially his prohibition on their sale, indicates that the possession of arms by citizens was originally understood as a matter touching the king — perhaps as part of the subjects’ duty to follow the king’s leadership in military matters? If this is so, then it is worth asking whether such a right can still make sense in a nation where the mutual responsibilities of rulers and subjects are no longer able to be defined by recourse to divine law.

Certainly, William Blackstone understood the right to bear arms this way:

“The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute . . . and is indeed 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 restrain the violence of oppression.”

Notice, first, that Blackstone allows that the right to bear arms may be limited: subjects are allowed, not all arms whatsoever, but “arms…suitable to their condition and degree, and such as are allowed by law.” It occurs to me that bans on certain kinds of weapons (private possession of nuclear bombs, etc.) are therefore not contraventions of this right in English law as Blackstone understands it. Nor do all citizens have an equal right to bear the same sort of arms: some, being noblemen, etc., occupy a different “condition and degree”, and might be allowed different weapons.

Second, Blackstone says that this right is the preservation in law (“public allowance”) of a “natural right of resistance and self-preservation.” That is, he grounds the right to bear arms on the right of self-defense, which is found in the law of nature, which is the same as the law of God. It is thus a very serious question whether any such right can logically be expected to remain in a nation where the law of nature, or of God, is not recognized as a legitimate source of positive human laws. If Blackstone is correct about the source of the English right to bear arms, then it is no surprise that Americans, living in a nation that has rejected that source, will have a hard time justifying the right any longer.

The restriction of the right to bear arms at various times in English history was usually done along religious lines: James II feared overthrow by Protestants, and so did not allow them to have weapons. Later Protestant monarchs feared overthrow by Romanists, and applied the same preventative.

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