Arizona Attorney - February 2015

Arms and armor defined the man. The Greeks had the ILIAD’S heroic images of bearing arms.

When Achilles killed Hector, he stripped him of his arms and thus his symbolic identity. 1

For Aristotle, possessing arms was the mark of a free citizen:

[T]he defense forces are the most sovereign body under this constitution, and those who possess arms are the persons who enjoy constitutional rights. 2

Plato, conversely, had a much more conservative—and undemocratic—view of bearing arms. He feared the power of the rabble. For him, an armed citizenry was a threat to the oligarchic government he preferred. 3

The Greek citizen-soldier was a hoplite (from his shield, the hoplon), meaning an armored and armed man. 4

The citizen equipped himself. By definition, a hoplite was one who could afford the armor, accepted the duty of risking his life to defend his state, and thus had a political voice. 5

The Greeks and Romans lacked our concepts of individualized and
inalienable rights. 6 The Greeks especially viewed their rights not as
inherent to themselves but as arising from the context of their polis
(city-state). 7 For this reason, the institution of slavery, widespread
in “democratic” Athens and “republican” Rome, was not an intel-
lectual problem. If your rights came from your status in the polis (or
later from Roman citizenship), then too bad if you happened to be
a slave. 8

Thus, our modern debate on whether we have an individual or

ARIZONA ATTORNEY FEBRUARY 2015 30 www.azbar.org/AZAttorney 1. Achilles’ triumph over Hector and display of his armor and stripped body before the walls of Troy.

Brad Pitt as Achilles in TROY

3. WILTSHIRE at 135. The framers of our constitution shared Plato’s fears, which is why we today do not live in a direct democracy but a republic.

Two and a half millennia after Plato, Roscoe Pound (1870–1964), legal scholar and Dean, Harvard Law School (1916–36), voiced the similar concern that “[i]n the urban industrial society of today a general right to bear efficient arms so as to be enabled to resist oppression by the government would mean that gangs could exercise an extra-legal rule which would defeat the whole Bill of Rights.” ROSCOE POUND, THE DEVELOPMENT OF CONSTITUTIONAL GUARANTEES OF LIBERTY 91 (1957).

4. Hoplites were primarily spear-men
fighting in a phalanx (plural phalanxes
or phalanges), a rectangular formation of
heavy infantry. “Phalanx” derives from the
Greek phalangos, meaning the finger,
which is where we get the term pha-
langes bones in the hands and feet. Each
man in a phalanx was like a finger in the hand to hit the enemy.

The Arms: The Roman Sword – Roman legions also generally fought in a phalanx but used the sword (the Roman Gladius) as their main weapon, which came from Spain (Gladius Hispaniensis). A “gladiator” is named for the gladius he wielded.

5. The word “politics” derives from polis, the Greek word for city, city-state, citizenship, or citizens.

Other English derivations include “policy,” “polity,” and “police.” WEBSTER’S at 1909.

This concept of accepting the duties of citizenship in return for a political voice reaches well into our time and, for instance, is a key theme of the film GLORY (Tri-Star Pictures 1989). The film depicts the 54th Massachusetts regiment with its commander, Robert Gould Shaw, and its assault on Ft. Wagner, S.C., in 1863. One of the key scenes has Morgan Freeman’s character, John Rawlins, slapping Denzel Washington’s character, Trip, and stating, “There ain’t no niggers here!” Rather, they are men with rights and a voice earned on the battlefield. As the very racist Union General William Tecumseh Sherman noted, “When the fight is over, the hand that drops the musket cannot be denied the ballot.” Quoted in Pamela S. Karlan, Ballots and Bullets: The Exceptional History of the Right to Vote, 71 U. CIN. L. REV. 1345, 1349 (2003) (citing ALEXANDER KEYSSAR, THE RIGHT TO VO TE: THE CON TESTED HIS TORY OF DEMOCRACY IN THE UNITED STATES 88 (2000)).

Indeed, Lincoln’s Emancipation Proclamation both proclaimed southern slaves’ freedom and issued a call to arms. President Abraham Lincoln, The Emancipation Proclamation (Jan. 1, 1863), available at http://avalon.law.yale.edu/19th_century/emancipa.asp.

I do order and declare that all persons held as slaves … are, and henceforward shall be free … [a]nd I further declare and make known, that such persons of suitable condition will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.

Blacks, however, fought in the Revolution in units including the 1st Rhode Island Regiment. In 1775, Washington came north and wrote another general, “We have some Negroes, but I look upon them in general [as] equally serviceable with other men … [M]any of them have proved themselves brave.” Quoted in RICHARD BROOKHISER, WHAT WOULD THE FOUNDERS DO?: OUR QUESTIONS, THEIR ANSWERS 171 (2006).

Plato and Aristotle from Raphael’s The School of Athens

A Roman
Gladius
Greek Phalanx
Greek Hoplite
GLADIATOR
(Dream Works 2000).

A 1780 drawing of American soldiers from the Yorktown campaign shows (far left) a black infantryman from the 1st Rhode Island Regiment.

6. See generally WILTSHIRE, Chapter 1.

7. The Athenian practice of ostracism exemplifies that individual rights had context for Greeks only in the polis. Ostracism occurred when the assembly voted to expel a citizen from the city for

10 years. This often defused confrontations between political rivals or expelled anyone who had the potential to become a tyrant. Although technically not a criminal punishment, ostracism stripped a man of his political identity. Moreover, if the person returned before his 10 years without having been recalled, the penalty was death. “Ostracism” comes from the ostraka, the pieces of broken pottery used as voting tokens. Voters would write the name of the person on the pottery, and 6,000 pieces meant ostracism.

Paper in the form of papyrus from Egypt was far too expensive for such a use. Of course, this practice is the basis for our modern word “to ostracize.”

8. See WILTSHIRE at 114, 122, 166, discussing slavery in both Greece and Rome. War captives became slaves, like the mythical Andromache, Hector’s wife, after the Trojan War.

Our word “slave” comes from the Middle English sclave from the Old French esclave, from Medieval Latin sclavus and ultimately from the Byzantine Greek sklabos (from sklabenoi) meaning “Slavic people.” This is because the Vikings had enslaved many Slavic peoples from Eastern and Central Europe and sold them to the Byzantine Empire. Before the 10th century other words meant slave such as the old Latin word servus, the basis of the word “serf.”