Grim's Hall

The Natural Right to Arms:

Dave Kopel believes it most important that the Heller decision considered the right to self-defense a natural right, pre-existing the Constitution. This gives the rights protected by the 2nd Amendment even greater stature than if they were "merely" Constitutional: one can amend away a protection that isn't a natural right by adjusting the Constitution, but a state that gives away your natural rights is a tyranny that justly provokes rebellion.

Since we are talking about Catholic moral history this week, follow this link to Kopel's piece on the Medieval Catholic development of a notion of a right to resist tyranny. As he correctly points out, Aristotle and the Greeks had a clear notion of this right, but it faded as Classical learning faded. By 1000, it had to be rediscovered by the Church.

However, he overstates the degree to which the right was lost in the Dark Ages. Scholars in the Church may have needed to rediscover it, but it was a felt and living tradition outside the monk's cell.

For example, Archbishop Hincmar of Rheims (approx. 805-881 A.D.), an important advisor to King Charles the Bald of France, wrote a pair of treatises distinguishing a king (who assumed power legitimately and who promoted justice) from a tyrant (who did the opposite). Yet even Hincmar argued that even tyrants must be obeyed unquestioningly.

"Even Hincmar" may have done so, but it was not the standard understanding of the folk of the Early Middle Ages. Þorgnýr the Lawspeaker made the point clear when speaking to King Olof the Swede in 1018. He spoke to the King as the head of the common folk of Sweden, and made clear what Dark Age Swedes thought of tyranny:

But if thou wilt not do as we desire, we will now attack thee, and put thee to death; for we will no longer suffer law and peace to be disturbed. So our forefathers went to work when they drowned five kings in a morass at the Mula-thing, and they were filled with the same insupportable pride thou hast shown towards us. Now tell us, in all haste, what resolution thou wilt take.

Emphasis added. The point being, this wasn't a one-time threat made in 1018: it was a threat with a resonant history. Nor was this pagan Sweden: Olof had been baptised in 1008, and remained Christian to his death. He was married to a Christian girl, and married his daughter to Yaroslav I of Russia, the son of St. Vladimir the Great.

So, when Kopel points to 1187 as a relevant date, he's vastly overstating the case.

As Glanvill’s famous 1187 treatise on English law explained, when a lord broke his obligations, the vassal was released from feudal service. If a party violated his duties under an oath, and the other party suffered serious harm as a result, the feudal relationship could be dissolved diffidatio (withdrawal of faith).

Historian Friedrich Heer explains that the diffidatio “marked a cardinal point in the political, social, and legal development of Europe. The whole idea of a right of resistance is inherent in this notion of a contract between the governor and the governed, between higher and lower.”

What Ranulf de Glanvill's 1187 piece cites is an understanding well-established in the Anglo Saxon law, if not the Norman one. As Glanvill was attempting to codify the "common law" developing around the courts of Norman England, he was doubtless encountering traditional English concepts as well as imported ones. The Anglo-Saxons certainly understood removal of bad kings, and the Witan -- the counsel of elders, the great men of the kingdom -- did so twice, in 757 and 774 A.D. Yet the Anglo-Saxons were also in the habit of consulting with the Pope when it was advantageous:

In the early years of Coenwulf's reign he had to deal with a revolt in Kent, which had been under Offa's control. Eadberht Præn returned from exile in Francia to claim the Kentish throne and Coenwulf was forced to wait for papal support before he could intervene. When Pope Leo agreed to anathematize Eadberht, Coenwulf invaded and retook the kingdom; Eadberht was taken prisoner, and was blinded and had his hands cut off.

Eadberht Præn was in exile at Charlemagne's court during the time he was out of Kent. The Pope appears to have taken Coenwulf's side not out of a sense that his claim to Kent was superior -- it had belonged to the Præns before -- but because Præn was a former priest.

In any event, when William the Bastard in 1066 went to the Pope for the right to rule England, there was precedent. But when the Witan selected Harold Goodwinson instead, there was also precedent. The question was resolved by force of arms at Hastings and elsewhere, and by the erection of powerful castles that could assert control of the land. By 1187, law had replaced force in many cases, and we can see that there was enough of a body of workable precedents arising across the land to need codification. (In addition to which service, Ranulf de Glanvill provided remarkable service as a fighting man, capturing the knightly king William the Lion of Scotland, serving as Sheriff of Yorkshire, and eventually dying on Crusade.)

In any event, Kopel makes a worthy and interesting argument. But when the Catholic Church went looking for ideas on the right to resist tyrants, they had more to draw upon than Aristotle. It is a natural right indeed, one well recognized by the folk of the Dark Ages. If it was occasionally denied by some tyrant kings, and sometimes by some of their allies in the Church, it was nevertheless deeply felt by the folk of Europe.