Arms Before Guns
Coming Out of Egypt Armed to the Teeth!
When the ancient Jews following Moses left Egypt, they left
God took the people toward the way of the Wilderness to the Sea of
Reeds. And the Children of Israel were armed when they went up
from Egypt. 7
Presumably the “children of Israel” “liberated” their arms from
their former masters, the Egyptians. After generations of slavery
they certainly would have had the right to them, as well as any
number of other items, for services rendered in building the pyramids!
The key, though, is that slaves do not bear arms; only free men
do. 8 For the ancient Hebrews, bearing arms out of Egypt manifested their change in status.
As we will see, guns and slavery are connected both at the founding and today. The message for the Second Amendment’s interpretation is clear. If free men can bear arms, the Second
Amendment must give the right to do so.
The Ancient World: Hoplites, Legionnaires, Democracy
The Roman poet Virgil began THE AENEID (Latin Aeneis)
Arma virumque cano – I sing of arms and the man. 9
For the ancient Greeks and Romans of the Republic, bearing arms
in defense of the city was central to citizenship. 10
6. The Second Amendment Scholarship:
Much of the scholarship is about the scholarship
itself. See e.g., Carl T. Bogus, The History and Politics of
Second Amendment Scholarship: A Primer, 76 CHI.- L.
REV. 3 (2000): “The scholarship is full of broad claims, fac-
toids, and counterpunching,” but “[t]he payoff for following the
details of the argument rapidly diminishes.” TUSHNET at 25. Thus, “It
may well be that history has little to contribute to this debate.” Cornell
& DeDino at 491. See also Christopher Keleher, The Impending Storm:
The Supreme Court’s Foray Into the Second Amendment Debate, 69
MONT. L. REV. 113 (2008) (“Pontificating on the Second Amendment
has become a cottage industry.”).
For even a small sampling of the Second Amendment academic debate, compare
H. RICHARD UVILLER & WILLIAM G. MERKEL, THE MILI TIA AND THE RIGHT TO ARMS, OR, HO W
THE SECOND AMENDMENT FELL SILENT (2002) with Randy E. Barnett, Book Review Essay:
Was the Right to Keep and Bear Arms Conditioned on Service in an Organized
Militia?, 83 TEX. L. REV. 237 (2004). See also Forum: Rethinking the Second
Amendment, 25 LAW & HIST. REV. 139 (2007), displaying the points and counter-points
of the historical argument (The forum included Robert H. Churchill, Gun Regulation,
the Police Power, and the Right to Keep Arms in Early America: The Legal Context of
the Second Amendment, 25 LAW & HIST. REV. 139 (2007) with responses by David
Thomas Konig, Arms and the Man: What Did the Right to “Keep” Arms Mean in the
Early Republic?, 25 LAW & HIST. REV. 177 (2007); William G. Merkel, Mandatory Gun
Ownership, the Militia Census of 1806, and Background Assumptions Concerning the
Early American Right to Arms: A Cautious Response to Robert Churchill, 25 LAW &
HIST. REV. 187 (2007); Saul Cornell, Early American Gun Regulation and the Second
Amendment: A Closer Look at the Evidence, 25 LAW & HIST. REV. 197 (2007), and
Churchill’s response at Robert H. Churchill, Once More Unto the Breach, Dear Friends,
25 LAW & HIST. REV. 205 (2007)); George A. Mocsary, Note, Explaining Away The
Obvious: The Infeasibility of Characterizing the Second Amendment as a Nonindividual
Right, 76 FORDHAM L. REV. 2113 (2008) (for a twist on the debate this article examines
how many historical points each side must explain away, concluding that the individual right prevails). But see Wills (critiquing work of five most prolific insurrectionists—
Robert J. Cottrol, Stephen P. Halbrook, Don B. Kates, Joyce Lee Malcom and Robert
Shalhope—and arguing that “it is the quality of their arguments that makes them
hard to take seriously”). More recently, see Paul Finkelman, It Really Was About a
Well Regulated Militia, 59 L. REV. 267 (2008).
For an early exposition of the insurrectionist theory, see Stephen P. Halbrook, To
Keep and Bear Their Private Arms: The Adoption of the Second Amendment, 1787-
1791, 10 N. KY. L. REV. 13 (1982); Stephen P. Halbrook, The Right of the People or
the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment,
26 VAL. U. L. REV. 131 (1991); Levison, The Embarrassing Second Amendment, 99
YALE L. J. 637 (1989). Levision calls the Second Amendment “embarrassing” because
many who espouse an expanded concept of individual rights from other parts of the
Bill of Rights also believe in gun control. For an early critique of insurrectionist theory,
see Dennis A. Henigan, Arms, Anarchy and the Second Amendment, 26 VAL. U. L. REV.
7. Exodus 13: 18, quoted in
ST. L. REV.
the same meaning including the American Standard Version “and the children
of Israel went up armed.” Kopel at 24 n. 32.
Exodus (Greek for “departure”), the second book of the
Jewish Torah and Christian Old Testament, tells how Moses
led the Israelites out of Egypt. Moses gave the Israelites the
Ten Commandments. According to tradition, Moses wrote
Exodus and the other four books of the Torah.
THE TEN COMMANDMENTS (Paramount Pictures 1956),
directed by Cecil B. DeMille, starred Yul Brynner and Charlton
Heston before his PLANET OF THE APES and NRA days.
9. VIRGIL, THE AENEID, line 1, quoted in
WILTSHIRE at 138. Virgil made up the “legend”
of Aeneas on a commission from Caesar
Augustus, who wanted to “class up” Rome’s
origins. The Mediterranean Greco-Roman culture already had a legend about Aeneas, a
character in Homer’s ILIAD. Virgil forged the disconnected tales of Aeneas’ wanderings into
Rome’s foundation myth linking it to the Trojan
legend while also glorifying Roman virtues and
legitimizing Augustus’ Julio-Claudian dynasty.
Several centuries later, Dante, in THE INFERNO,
has Virgil do duty as tour guide of Hell.
10. Our very word citizenship derives
from “city.” WEBSTER’S NEW IN TERNATIONAL
DICTIONARY OF THE ENGLISH LANGUAGE 491
(2d ed. 1942); WILTSHIRE at 134.
8. “For most of human history, a distinctive feature of a free man is that he possesses
arms, and a distinctive feature of a slave is that he does not.” Kopel at 24.
Paul Newman’s character, Captain Ari Ben Canaan, in EXODUS (United Artists 1960), a
movie about the beginning of modern Israel, knew this.
See Stephen P. Halbrook, “Arms in the Hands of Jews Are a Danger to Public
Safety”: Nazism, Firearm Registration, and the Night of the Broken Glass, 21 ST.
THOMAS L. REV. 109 (2009), arguing that the gun registration laws of the “liberal”
Weimar Republic in Germany made it easier for the Nazi to later disarm German Jews.
Aeneas Flees the Burning Troy with his father on his back to eventually found Rome.
Virgil guiding Dante through Hell