Cicero

The arguments presented to the Supreme Court in the Heller case in favour of the individual right to bear arms are not complete given that no explicit mention was made in them of the right to self defence in a free state against the conspiratorial, targeted use of unaccountable politically motivated violence. The failure to deal adequately with this issue in the Heller case may best be explained not merely as an oversight but more fully as a consequence of the inconsistent political philosophical basis of those works used to inform the legal defence of the second amendment. This inconsistency reflects the failure of modern social theory to grant adequate recognition to the principles of natural law and common sense realism which determined in large part the meaning and priorities of the Bill of Rights. This point is amply demonstrated when account is taken of the fact that both the tradition and foundations of natural law and their application to the right to self defence and also their application in law to the right to bear arms in self defence against the unaccountable use of violence for political purposes were established by the most authoritatively ancient and longstanding resource of constitutional and legal understanding available to the founders: Cicero. His theory of natural law and government represents the most important authoritative resource used by the founders in their understanding of the Roman republic, which as the world knows comprised the primary model and reference point used by them to construct the US Constitution and Bill of Rights.

Cicero formulated the chief principles of Roman law in their application to the right to bear arms. As such these principles comprise the oldest written republican constitutional authority on this ‘ancient and indubitable’ right. The work and speeches of Cicero are the most important testimony both to the longstanding character of this right and also its integral relation to the preservation of republican government against the threat of tyranny because no greater authority exists in such regard concerning the scale and mortal nature of the dangers posed by the conspiratorial use of violence. Cicero witnessed at first hand the machinations of faction and aristocracy which led to the destruction of republican constitutional order and the establishment of tyranny as the predominant mode of government which would last almost two thousand years until the establishment of the US Constitution and Bill of Rights. This most certainly is how the founders understood the significance both of their actions and of the works of Cicero. These are his recorded thoughts on the ancient and indubitable right to bear arms. As can be seen its relation to natural law is integral and fundamental:

‘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. When weapons reduce themselves to silence, the laws no longer expect one to await their pronouncements. For people who decide to wait for these will have to wait for justice too - and meanwhile they must suffer injustice first. Indeed, even the wisdom of the law itself, by a sort of tacit implication, permits self defence. Because it does not actually forbid men to kill; what it does, instead, is to forbid the bearing of a weapon with the intention to kill. When, therefore, an inquiry passes beyond the mere question of the weapon and starts to consider the motive, a man who has used arms in self defence is not regarded as having carried them with a homicidal aim.’ (Cicero, Selected Political Speeches, Translated by M. Grant, p.222, 1969.)

It can be seen here that fear of plots involving the conspiratorial use of violence for political purposes was actually the very first of Cicero’s concerns regarding the right of the private citizen to bear arms: armed robbers and recognizable enemies he treated as secondary to this primary concern. This makes the Supreme Court failure to even specify this primary foundation of the right to bear arms all the more serious. It has arisen as shown, from more general shortcomings concerning social theory. Future defence of the second amendment can be improved if account is taken of the suggestions made here to help tackle these weaknesses, including those concerning conflict resolution strategy. Included in such strategy can be a more precise formulation of the primary foundation and purpose of the right to bear arms: to prevent tyranny, both in regard to the conspiratorial use of political violence, and in regard to open government oppression. A correct grasp of these priorities is not merely an abstract question. It also has practical implications. The understanding developed here suggests that it can be stated that the right to bear arms free from any government interference should most certainly apply to lethal, concealable weapons, most especially those such as revolvers which do not require two hands to operate, since speed, more so than firepower is of the essence in matters of self defence. This balance of the relation between order and liberty has been established for two centuries in Vermont and should never, for all practical intents and purposes be subject to change. As Jefferson stated, the rights of man are permanent and unchanging. Eternal vigilance Is the price of liberty: crime rates may rise or fall, but the threat of tyranny, most especially by stealth, will always remain part of the business of government. For heavier weapons one possible concession to the interests of regulation could be that they be subject to a permit or licensing regime, and/or kept at collectively managed premises sufficiently numerous in location to be easily available to capture by a people’s militia drawn from the general population in case of emergencies. The American revolution itself demonstrated the decisive importance of this consideration, since without rapid capture of the colonial arsenals it may never have succeeded.

Such concessions to firearms regulation could only be made on condition that all states adopt the standards set by Vermont in regard to revolvers below a certain caliber: that is, the effective repeal of all regulatory restrictions affecting the right to carry an easily concealable weapon. It can also be stated that until such agreement can be reached other firearms issues such as hunting and sporting rights should be regarded as of continuing decisive importance, both necessary in their own right but more especially in their auxiliary relation to defence of the second amendment. This is the most optimal formulation of the practical priorities appropriate to effective defence of the second amendment, and accordingly the best foundation upon which to seek lasting agreement between conservatism and radicalism on this question.