Blackstone's fifth auxiliary right and how it shaped American thinking on arms

Here is a paradox for a Sunday afternoon. The English lawyer whose words did more than anyone's to teach Americans what a right to arms meant was a man who believed, with his whole professional heart, that Parliament could do anything. William Blackstone, repeating Sir Edward Coke, described Parliament's power as "so transcendent and absolute" that it "cannot be confined, either for causes or persons, within any bounds." And yet this same man, in the same book, wrote down a right to arms that American lawyers would carry into their state constitutions and their courtrooms.

That tension is the story. Blackstone gave the founders the vocabulary. What the founders did with it, they did on their own account.

Who Blackstone was and what the Commentaries were

William Blackstone was an English jurist who delivered the first university lectures on English law, at Oxford, in the 1750s. He turned them into a four-volume work, the Commentaries on the Laws of England, published between 1765 and 1769. The scheme was clean and teachable: Book 1 on the rights of persons, Book 2 on the rights of things, Book 3 on private wrongs, and Book 4 on public wrongs. It was written in plain, balanced English, which is why it sold.

The Commentaries did something no previous text had managed. They took a thousand years of English law, tangled up in Latin, French and case reports, and made it readable to a country lawyer, a planter, or a merchant's son who wanted to understand his own rights. If you wanted a single book to learn what Englishmen thought the law was, in the generation before the Revolution, this was it.

How widely the Commentaries were owned in the colonies

The proof of reach comes from a speech. On March 22, 1775, Edmund Burke rose in the House of Commons to urge conciliation with America. He observed that in no country was the law so general a study as in the colonies, that the legal profession there was numerous and powerful and in most provinces took the lead, and that he heard they had sold nearly as many copies of Blackstone's Commentaries in America as in England. Burke was making a point about the legal habit of the colonies. Whatever the exact count, his claim tells us how the English themselves saw the American bookshelf.

The first American printing arrived soon after. A Philadelphia bookseller, Robert Bell, issued an American edition of the Commentaries in the early 1770s, which made the work cheaper and available to men who could not afford the London volumes. Later, in 1803, St. George Tucker of Virginia published an annotated American edition that compared Blackstone to American law, and we will come back to Tucker, because his notes on the arms passage are among the most interesting commentary there is.

The result is that by the time of the Revolution and the Constitution, a lawyer in Boston, Philadelphia or Richmond, quite possibly a member of the convention that wrote the state declarations, had Blackstone within reach. John Adams, for one, was among the subscribers to Bell's American edition. When the founders reasoned about rights, they reasoned in a language Blackstone had helped to standardize.

The scheme: absolute rights and auxiliary rights

Now to the passage itself. It sits in Book 1, chapter 1, titled "Of the Absolute Rights of Individuals." Blackstone's structure is worth stating exactly, since the arms right does not make sense outside it.

He begins with what he calls the absolute rights of individuals, rights that belong to people in a state of nature and are retained in society. He reduces them to three:

1. The right of personal security: life, limb, body, health and reputation.
2. The right of personal liberty: the power of moving one's person without imprisonment or restraint unless by due course of law.
3. The right of private property: the free use, enjoyment and disposal of all one's acquisitions without control except by the law of the land.

Rights on paper, however, are worth little if nothing protects them. So Blackstone adds a second layer, which he calls auxiliary rights, subordinate rights "which serve principally as barriers to protect and maintain inviolate the three great and primary rights." They are the fences around the field.

He lists five. In summary form they are: the constitution, powers and privileges of Parliament; the limitation of the king's prerogative by bounds so certain and notorious that it is impossible he should exceed them without the consent of the people; the right of applying to the courts of justice for redress of injuries; the right of petitioning the king or either house of Parliament for redress of grievances; and the fifth, the right of having arms.

Look at what that company says about the fifth. The first four are about institutions that restrain power: a representative legislature, a bounded Crown, accessible courts, a petition. The arms right comes last in the list, and it is the backstop. When the first four fail, the fifth remains.

The fifth right, read closely

Here is the passage. I give it with modern spelling:

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 1 W. & M. st. 2. c. 2. 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.

Take it in pieces.

"The fifth and last auxiliary right of the subject." Blackstone presents this as a right of the subject, not a privilege of a class or a favor of the Crown. It is on the same list as petition and access to courts.

"Of having arms for their defence." Defence is the stated purpose, and it is the word the 1689 Bill of Rights used. Not hunting, not sport, not militia service. The word is defence.

"Suitable to their condition and degree, and such as are allowed by law." These are the English limits, taken straight from the 1689 text. Blackstone does not hide them. He reports the law as it stood. (For the history of those limits, see The 1689 English Bill of Rights and the arms clause Americans refused to copy.)

"A public allowance, under due restrictions, of the natural right of resistance and self-preservation." This is the heart of the sentence. Blackstone says the English statute is a public allowance, which is the language of the legal order granting space, of a right that exists independently: the natural right of resistance and self-preservation. The statute declares the right. It does not create it. Note what he is saying about the source: nature, not Parliament.

"When the sanctions of society and laws are found insufficient to restrain the violence of oppression." Here is the trigger. The right of resistance operates when the ordinary protections fail. Blackstone is not describing a plan for insurrection. He is describing what the whole structure of ordered liberty assumes: that a law-abiding people keep the means of defending life and liberty in reserve, because there are times when society's protection falls short.

That last clause is where the American reader sat up. It tied the arms right to two things the colonists were intensely interested in: self-preservation, which no legislature can repeal because it belongs to nature, and resistance to oppression, which was about to become a pressing practical matter.

Natural right, public allowance, and a gap Americans noticed

There is a tension inside the passage, and it is the same one we find across Blackstone. He grounds the right in nature, and then he describes it as a public allowance "under due restrictions." Which is it: a natural right that the law merely recognizes, or a legal right whose boundaries the law sets?

Blackstone's English answer is a compromise. The right exists in nature, and the law may regulate its exercise, and in England Parliament decides how. But that compromise sat badly with a people who had just concluded that Parliament was not a safe judge of their liberties. When the Americans read "natural right of resistance and self-preservation," they took the first half seriously. When they read "under due restrictions" and "as allowed by law," they asked who would set the restrictions, and decided that the answer must be a written constitution rather than a sovereign legislature.

That is the move from Blackstone to the American constitutions. The right in nature, the American said, is not conditional on legislative permission. The legislature may not abolish it, and the text should say so.

What Tucker did with the passage

The best evidence for how an American read Blackstone is St. George Tucker. A Virginia judge and law professor at William and Mary, Tucker published his edition in 1803, a dozen years after the Bill of Rights, with American footnotes. Where Blackstone said arms were allowed "by law," Tucker's notes explain that the American situation is different. In Tucker's reading, the English right had been cut down by the game laws and other devices, and in America the Second Amendment was a barrier against exactly that kind of qualification. He called the right to keep and bear arms the true palladium of liberty and treated its prohibition, under any pretext, as a sign that liberty was in danger.

I will leave a fuller treatment of Tucker and Joseph Story to St. George Tucker and Joseph Story, the first great commentators on arms. The point for this post is that the first great American annotation of Blackstone did not copy the English limits. It saw them and criticized them.

How the passage shows up in American law

By the founding, the language of Blackstone's fifth right had already worked its way into American texts. Pennsylvania's declaration of 1776 speaks of arms "for the defence of themselves and the state," and its word "defence" is Blackstone's. Their drafters had no need to name the source; the idea was in the air. (For the texts themselves, see What Pennsylvania and Vermont wrote about arms before the Second Amendment.)

Then, in 2008, Blackstone returned to the front rank of American law. In District of Columbia v. Heller, Justice Scalia's opinion for the Court relied on Blackstone more than once. The Court treated Blackstone as the authority on what the English right was, and described the founding generation as having inherited an understanding of the right as an individual one tied to self-defense. It quoted Blackstone's description of the right as "the natural right of resistance and self-preservation." And it used Blackstone to answer the argument that the right was only about militias. If the right as Blackstone described it was a right of every subject to have arms for his own defence, then the American right, drawn from the same source, was no narrower.

The dissent had its own reading, which gave more weight to the militia clause, and it is fair to say that Heller was decided 5 to 4. The scholarship about Blackstone's meaning has been argued over by serious people on both sides. But the main point survives the argument: the arms right was classed with the great protections of liberty, and its stated purpose included self-preservation.

The strongest objection, stated fairly

The best case against reading Blackstone as a friend of an individual right runs like this. Blackstone's whole constitutional theory was parliamentary sovereignty. He said the power of Parliament was absolute and could not be controlled. He wrote that the right was "under due restrictions," "suitable to their condition and degree," and "allowed by law." He also described the Game Laws, which limited who could keep a gun to men of property. So the Blackstonian right is a right on a leash, held by Parliament, and the founders who relied on him inherited the leash.

It is a respectable argument. It is also wrong, for three reasons that stack.

First, it confuses description with approval. Blackstone was a describer. He told his readers what English law was. When he reported the English limits, he was reporting the statute. The part of the passage that was his own, the claim about "the natural right of resistance and self-preservation," is where he explains why the right exists.

Second, the founders did not take the leash. We know because of what they wrote. No American text includes the phrase "as allowed by law" or "suitable to their condition and degree." The omission is the best evidence of what they took from Blackstone and what they left behind. They took the right and its source in nature, and left the English limits at the dock.

Third, the American framers pointed the argument at the colonies' own grievance. The colonial position was that Parliament could not legislate on certain matters without consent. Blackstone, who called Parliament's authority absolute, was in that sense the other side's author. Americans read him selectively, like a man who finds the opposing counsel's treatise useful for its facts and rejects its conclusion. That is what a sophisticated reader does.

What a family can take from the passage

Why should a modern reader care about a 250-year-old lawyer? Three reasons.

One. It shows where the self-defense rationale comes from. Americans did not invent the idea that a person may keep arms to protect himself and his family. They found it in the most widely read legal treatise of their time, framed as a natural right, which they then made constitutional.

Two. It shows the logic of the "auxiliary" right. The arms right was never meant to stand alone. It sits beside the right to petition, the right to a court, the right to a representative government. A people that has all of them is in a position to keep the others. Remove the last, and the others rest on the goodwill of those in power.

Three. It reminds us that a written right is not the same as a protected right, and that the difference is who holds the pen. Blackstone's English right rested on Parliament. The American one, by design, does not.

A small joke, since the subject is heavy. There is something almost comic about the founders' relationship to this book. They fought a war to escape its author's theory of parliamentary power while keeping his handbook of liberties open on the desk. It is like carrying your landlord's furniture out of the apartment, and then complaining that his lease was unfair. Nobody can accuse the founders of lacking taste in furniture.

On the long line from Blackstone to the American cases, also see Bliss, Nunn and the antebellum judges who first read the right to bear arms, which follows how the first American judges read the same idea, and George Mason and the well regulated militia composed of the body of the people, which shows the Virginia version taking shape in 1776. For the Founders themselves, the site's founders page is a good starting point.

The case in brief

1. Blackstone's Commentaries (1765 to 1769) were the standard legal text of the founding generation, and Burke noted in 1775 that they sold almost as widely in America as in England.
2. In Book 1, chapter 1, Blackstone listed having arms for defence as the fifth and last auxiliary right, a barrier protecting the three absolute rights of security, liberty and property.
3. He grounded it in "the natural right of resistance and self-preservation," a right that exists before any statute.
4. His English limits, "suitable to their condition and degree" and "as allowed by law," did not travel into American texts, and Tucker's 1803 notes show Americans knew the difference.
5. Heller drew on Blackstone to show that the arms right was understood as individual and defensive, not only a militia matter.

What you can do: find the Second Amendment and your own state constitution's arms clause, and compare their wording to Blackstone's passage, to see which limits your state kept and which it dropped.