Greece, Rome, and the Bill of Rights (26 page)

Read Greece, Rome, and the Bill of Rights Online

Authors: Susan Ford Wiltshire

Tags: #Political Science, #General, #History, #Law, #Reference, #Civil Rights, #test

BOOK: Greece, Rome, and the Bill of Rights
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reports that groups could petition jointly. Prominent officials of higher status sent letters,
epistula
. The emperor's written replies were called rescripts.

118
The emperors assumed that they were acting in the tradition of private jurists giving legal opinions (
responsa
), for the most part simply declaring that they were operating within existing law rather than actually legislating.
119

In private cases the rescript was not a judgment and did not constitute a legislative act. As a step in a judicial proceeding, however, it required a governor to apply the law as stated in the rescript. Another important feature of this system was that it contributed to a measure of uniform application of the law by taking account of precedent.
120
Cicero lists three occasions upon which the opinion of the Roman people could best be assessed: in meetings of the
contio
, the informal gatherings summoned and addressed by the magistrate; in the assemblies; and at the games or gladiatorial contests.
121
Under the empire, even as early as Augustus, the assemblies ceased to have any but the most formal functions. In a long letter to Marcus Aurelius outlining the duties and functions of emperors, Cornelius Fronto states that one of the duties of an emperor is "to address the people on very many matters in public meetings."
122
We gather from this remark that imperial eloquence in the
contiones
seems to have had some value. But the opportunities for confrontation between the emperor and the populace were much more frequent at the Circus Maximus (which held as many as 200,000 spectators) for chariot races, in the amphitheater (which held fewer than 50,000) for gladiatorial shows or wild beast hunts, or in the theatres (that of Marcellus held 10,000, of Balbus 6,0007,000).
123
The participation of the emperor on these occasions was marked by elaborate rituals: a formal entry was made, and the emperor was prominently seated where his reactions would be visible to all. He was expected to appear to enjoy the shows. Caesar was resented when he got in some extra reading and writing during the shows, and

 

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Marcus Aurelius was ridiculed for reading and having material read to him while attending the Circus.

124

On these occasions specific exchanges could take place between the emperor and the people. For example, Claudius sometimes addressed the people at shows or had his messages written on boards, which were paraded around for the spectators to see.
125
The crowds compelled Tiberius to return to the baths a statue by Lysippus, which he had removed to his own bedroom.
126
The execution of individuals was also demanded by the crowds. But larger issues were also addressed, such as the demand of the people in
A.D.
15 for the removal of the sales tax. Millar concludes that these occasions were episodic and, though important, were not so important as the communications "endlessly addressed to the emperor in writing and in speech by the communities and associations of Italy and the provinces."
127
In summary, one of the major devices developed for the administration of the Roman Empire was the written petition to the emperor, whose responses came to form a major body of Roman law. Less formally, the people might demand a favor from the emperor when he appeared at public gatherings. Petition in the Roman world, however, was always centripetal. It signalled the power of the center rather than the power of the petitioner.
A survey of classical culture from the perspective of the First Amendment reveals, at Athens, valiant efforts to develop democratic institutions of assembly and speech, and, at Rome, a capacity for religious toleration that was one of the great strengths of the republic in spite of its oligarchic control of all areas of civic life. Of rights in any of these areas there were none. Of roots, however, there were some. After long centuries of fallow, these roots would prove fruitful in other times and places, for which the innovations of Greece and Rome helped prepare the way.

 

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Chapter 7
Amendments II and III: Bearing Arms and Quartering Soldiers
II. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
III. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner prescribed by law.
The Second and Third Amendments reflect issues acutely felt in America during the armed revolution against Great Britain. The framers knew from experience that individual rights are in jeopardy once military control supplants the civilian rule of law. More generally, these two amendments of the Bill of Rights speak to the dilemma of regulating the military in any society committed to democracy and the dignity of individuals.
The Second Amendment had its origins in a context very different from modern controversies over gun control. The wording of the amendment reflects a compromise from the far more radical notion contained in Article 13 of the Virginia Declaration of Rights. That article concedes that a well-regulated militia composed of the people was "the proper, natural and safe Defence of a free State,"

 

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but goes on to caution that "standing Armies, in Time of Peace, should be avoided, as dangerous to Liberty, and that, in all Cases, the Military should be under strict Subordination to, and governed by, the Civil Power."
The idea shaping the compromise was that even though standing armies in peacetime may be dangerous to liberty, they should not be prohibited. Rather, the Constitution should ensure citizens the right to keep and bear arms so that if state militias needed to be raised under emergency conditions, its members would have their muskets ready at hand.
Alone of the first ten amendments, the Second Amendment has never been construed by the Supreme Court as guaranteeing an inherent right of individuals. In its first decision on the amendment,
United States v. Cruikshank

1
in 1875, the Court found that the right to keep and bear arms was not an inherent right guaranteed in and of itself by the Constitution, but rather was simply protected against infringement by the federal government. More recently in
Sandidge v. United States,
2
a case in which an appellant convicted of carrying a pistol without a license argued that the District of Columbia firearms statute violated his constitutional right to bear arms, the appellate court wrote: "We agree with numerous other courts that the Second Amendment guarantees a collective rather than an individual right.... The purpose of the second amendment is to preserve the effectiveness and assure the continuation of the state militia.... Appellant cannot show that possession of a handgun by an individual bears any relationship to the District of Columbia's desire and ability to preserve a well regulated militia."
3

The Second Amendment therefore has meaning only in the context of the right of the several states to maintain an organized militia. The right "of the people" means the people as a collective. Guns for personal protection and self-defense or to guard some "right to revolution" are not constitutionally protected as an inherent right of individuals. Roscoe Pound warned of the dangers of the individualistic interpretation: "In the urban industrial society of today a general right to bear efficient arms so as to be

 

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enabled to resist oppression by the government would mean that gangs could exercise an extra-legal rule which could defeat the whole Bill of Rights."

4

Thirty-seven states have constitutional provisions bearing on the right to keep arms.
5
Of those, fifteen states include language that reflects an individual theory of armsbearing.
6
Alabama, for example, provides that "every citizen has a right to bear arms in defense of himself and his state."
7
The Arizona constitution refers to the "right of the individual citizen to bear arms in defense of himself and the state."
8
Sharply contrasting are those twenty-two states that hold the collective right theory consistent with the federal Constitution.
9
In Ohio, for example, the provision states that "the people have the right to bear arms for their defense and security, but standing armies in time of peace are dangerous to liberty and shall not be kept, and the military shall be kept in strict subordination to the civil power."
10
The Tennessee constitution reads: "The citizens of this state have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime."
11
It is therefore tragically ironic that possession of handguns has been argued so vociferously as "a constitutional right."
12
Congressman Edward F. Feighan of Ohio points out that lobbying groups opposing gun control fail to say that this supposedly unassailable constitutional right is solely directed to maintaining a "well-regulated Militia" and that any statutory regulation of gun sales does not necessarily infringe upon a constitutional right to bear arms.
13
In sum, the Second Amendment, unlike the others, proposes an entitlement that is at most a privilege, not an inherent and protected right of individuals. As we turn to ancient Greece and Rome, however, we find armsbearing at the very center of the definition of citizenship.
Armsbearing in Greece and Rome
The heroic age of Greek culture reflected in Homer's
Iliad
was one in which war
was
politics. War and success in

 

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