Supporting nine out of the first ten Amendments to the Constitution is not enough.
“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.”
I don’t own a gun. I never have, and probably never will. In fact, I’ve never even fired a weapon. Not in anger, not for self-defense, not even for fun.
And yet, as someone who has never exercised my Constitutional right to bear arms, I’m as adamant about preserving and protecting this right as I am about preserving and protecting my right to free speech, which I tend to exercise frequently.
Over the years I’ve seen many defenses of the Second Amendment. They range from leaving out the “well regulated militia” part and focusing on “the right of the people,” to the general admonition that tyrannical governments prefer a disarmed citizenry. Critics, of course, attack the people’s right to bear arms by assuming that only card-carrying militia members (the kind authorized by the government, not those self-defined groups populating the state of Montana) can own or carry weapons. Or, in an appeal to emotion over Constitutional language, focus on why the average citizens needs an arsenal of pistols, shotguns, rifles, rocket launchers, and AK-47s.
A lot of this discussion, in my opinion, misses the point. If I was defending the Second Amendment — and yes, unfortunately, given the state of political education and public discourse today it needs to be defended — I’d approach it something like this:
The Bill of Rights
The Bill of Rights, although technically no different than any other provision or amendment of the Constitution, does enjoy a political distinction. It was part of an understood agreement that helped ratify the Constitution itself.
This means that we must look at Amendments 1-10 through this prism, rather than just say they reflect the thinking of one period of history. By contrast, the 18th Amendment (prohibition) had the same force of law as all other Amendments and original articles/provisions of the Constitution, but it was clearly just a response to an historical moment.
Understanding the Second Amendment as part of the overall Bill of Rights, not as a stand-alone 27-word fragment of the Constitution, is important because the making of a Constitutional provision cannot be separated from the politics of the time. Each article of the Constitution and each Amendment to the Constitution has its own “history” that the Court will refer to in order to discern its original intent; assuming, of course, that the individual members of the Supreme Court are actually interested in determining the constitutionality of an issue, rather than imposing their own standards of “fairness” on constitutional matters.
With the first 10 Amendments, it is not merely individual histories that matter, but a recognition that each Amendment is part of an additional, over-arching logic and special place in history. They are a “package” so to speak that collectively says something important about the people’s core, basic right to free speech, the right to bear arms, the right against self-incrimination, and so on. Each right is bound to the other; some flowing from a previous right, others there to protect the exercise of the other rights.
Changing the Constitution
Looking at the Second vs. the Eighteenth amendment (prohibition), another proof of the Bill of Right’s special place is seen. We can overturn the 18th Amendment with the 21st Amendment, as we did in 1933, without provoking a constitutional crisis. We can even change the way a president is elected, the date a president is inaugurated, limit a president’s term in office, and change the line of succession for a president. And each of these constitutional provisions could be changed again at some future point without public outcry.
But fundamentally change any one of the first 10 Amendments, and people will perceive that the basic rights embodied in the Constitution itself are under attack. It may be more accurate at this point to say “may” perceive instead of “will” perceive because, as I’ll explain later, the public needs to be aware that a fundamental right is in danger before it will react to that threat. And this recognition depends on a couple of factors that I’ll discuss in more detail shortly.
Free speech is one case where the public is generally aware that a basic right exists, although they may not be entirely aware of exactly what that right entails. The First Amendment entitles one to speak freely without undue governmental constraint, with speech defined not just as words being written or vocalized, but encompassing the methods of free speech as well (with the unencumbered use of money being a principle vehicle to exercise this right). It does not, as some people contend, also demand the right to be heard. George Soros has a perfect right to spend millions, if not billions, to spread his bilge. I, however, am not obligated by the First Amendment to listen to his rantings, or if I do listen, believe what he says.
In recent years the Court has eroded some of the protections normally associated with the right of free speech — upholding Campaign Finance Reform, to name the most prominent example — provoking a long, sustained, ongoing public outcry. However, as vociferous as these complaints are to a sizeable section of the population who not only want a full restoration of their Constitutional rights, but fear even further erosions of the Right to Free Speech by political sleights of hand like the “Fairness Doctrine,” this outcry would become a deafening roar if the First Amendment itself was formally overturned and replaced with an entirely new concept.
This is why changes to the Bill of Rights are normally of the “frog in boiling water” kind. That is, they are small and gradual modifications whose impact is felt over the long passage of time, like placing a frog in a pan of water and gradually turning up the heat. By the time the cumulative changes have been recognized, the water is at full boil and the frog is dead. No such subterfuge is needed to change a presidential succession policy, or alter the way in which a senator is elected to office.
This gives the first 10 Amendments a de facto status over and above any other Amendment, or even any other Articles of the Constitution itself. Interstate commerce has been radically changed over the years through Supreme Court interpretations. And even such things as the president’s power to fight a war has been altered by legislation (the War Powers Act), or simply by the changing world situation that makes formally declaring war no longer practical in all cases.
Some people will point to this last example and contend that the Constitution is not simply being changed; it is being subverted. There is room for legitimate debate here, and the passion it provokes is noticeable and real. But that passion and debate is not widespread. The overwhelming majority of those opposed to the use of US military force in Iraq do not point to the Constitution’s declaration of war provisions to ground their argument. This is a debate among academics and ideological political activists. But use the government to close down a newspaper for saying unkind things about Bush, McCain, Hillary or Obama, and even the guy who never heard of Adams, Jefferson, or the Federalist Papers will see a threat to his/her basic Constitutional rights.
Unlike the Amendments that followed, or any one of the Constitution’s main provisions itself, too much tinkering with the Bill of Rights is the political equivalent of touching the “third rail” of American politics. Slow and modest changes may be accepted over time, as long as the core issues of each Amendment are left relatively untouched. However, go too far and take away liberties rather than simply modify their expression, and it will provoke a deep and instinctive reaction. Only a couple of later Amendments could invoke the same passion; those ending slavery and extending suffrage. But one could logically argue that these are extensions of the Bill of Rights itself, and thus viewed with somewhat of the same intrinsic reverence as the original 10.
State-Federal Relationships
It is true that in addition to chipping away at the edges of the First Amendment — and to some people’s way of thinking, doing the same thing to other key elements of the Bill of Rights through the passage of things like the Patriot Act — the Supreme Court has also altered the meaning of the Ninth and Tenth Amendments by allowing the Federal Government to usurp more and more State power. But significantly, even though the Ninth and Tenth Amendments have been dramatically altered since they were first enacted, even to the point of stripping away many of their core components, no individual rights are being “taken away” by this de facto and de jure reinterpretation. Transferring powers to the national government that formerly belonged to the States is not the same thing as eliminating an individual’s right to free speech, or jailing someone without due process.
Please understand that I’m not trying to downplay the significant impact the Federal usurpation of State authority can have on individuals. Anything the government does — Federal, State or local — impacts each citizen of the country, and the more distant our elected representatives are, the less inherently accountable they become to our individual wishes. Rather, I’m pointing out the very real distinction in the minds of the public between Amendments that protect their own personal freedoms, and Amendments or Constitutional provisions that regulate and govern the country.
The Bill of Rights contains both types of protections, and both are certainly important. But it’s equally true that when pressed to name the Bill of Rights, most citizens fade after “free speech,” “the right to own guns” and the right to “take the Fifth.” Since we’re talking here about individual perceptions of individual rights, it’s fair to say that any significant tampering with the First, Second and Fifth Amendments would invoke immediate outcry, while altering the language of “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . .” would promote less of a public reaction. In fact, this is one reason why loud lamentations about the inherent danger of the Patriot Act generally fall on deaf ears. No one wants to surrender their right against self-incrimination, but unlike shutting down a newspaper (or your favorite talk radio host), or confiscating your gun collection, the average citizen does not stay up nights worrying that the ghost of J. Edgar Hoover is personally reviewing his public library card records.
So, while the preservation of States Rights is a fundamental part of the Bill of Rights, the public is generally willing to allow the details of this Federal-State partnership to be worked out without too much of their personal oversight or involvement. As a consequence, the States are generally allowing this usurpation or erosion of their power to happen as part of an understood political bargain that gives them federal funds in return, or relieves them of certain regulatory and oversight responsibility which can cost them both money and manpower. Of course it’s a Devil’s bargain at times, because the Federal government can use this power to impose unfunded mandates on the States. But we can’t judge the history of what allowed a change to occur by the actions decades, even centuries later of certain parties that now make it seem like a less-attractive deal.
Therefore, the fact remains that while States have not always surrendered their powers willingly, neither have they always fought this surrender. To those who want to point to the Civil War as a fight to preserve the States’ powers, and maintain that this trend toward increased federalization is only the case because of Federal occupation of Southern lands following the Civil War, I would point out that erosions of State power occurred well before the 1860s. And, the continuing decisions of the States in the 20th and 21st centuries to accept increasingly diminished power cannot be laid completely on the doorstep of Robert E. Lee’s military failures. The people of modern day Alabama, Georgia, and Mississippi are no different today in surrendering State power to seek increased Federal aid than the people of New York, North Dakota, or California. State leaders who actively and complicitly trade State power for Federal funding of State projects are not driven from office; they are re-elected.
Individual-Government Relationships
Where matters involve clearly-recognized individual rights, there is less erosion of Bill of Rights provisions, and more of a battle when such a threat occurs. The Court has allowed — and the public has generally accepted — certain changes in the Bill of Rights, in part because new technology and new circumstances require these changes. Electronic evesdropping on overseas phone calls routed through US phone lines is an example of this. Some hyper-sensitive Constitutionalists see this as an infringement on the First, Fourth and Fifth Amendments, even though the conversations are exclusively between foreigners and not US citizens. They fear that, taken to the extreme, the Patriot Act will strip away individual civil liberties if this precedent stands, so they resist. But to most people, warrantless wiretaps of suspected foreign terrorists pose no inherent Constitutional risks.
In other areas, such “progress” is met with public resistance. In an effort to protect the people from hateful speech, and in so doing protect the jobs of incumbent legislators, Congress passed the McCain-Feingold campaign finance reform law. The Supreme Court of the United States (SCOTUS) upheld key provisions of that law, provoking a public uproar. The courts are presently re-visiting the law to lessen some of these restrictions and make other appropriate changes, once again demonstrating that unreasonable limitations on the Bill of Rights’ individual rights will not be tolerated, no matter how “noble” the impetus for the change.
Reasonable limitations, such as acknowledging that free speech doesn’t permit slander, or the impermissibility of yelling “fire” in a crowded theater, are acceptable to the public. In the same vein a certain level of gun registration has been accepted as a “reasonable” limitation on Second Amendment rights. However, severely restricting the public’s ownership of guns is not.
“Reasonable” Limitations of Individual Rights
“Reasonable” is partly the product of a political compromise, and partly what the courts and politicians can get away with. Since the Constitution operates in a political environment, it cannot be separated from politics. Politics created the Constitution, and dictated the timing of when the first 10 Amendments were ratified. “Politics” even dictated SCOTUS’ role in declaring a law Constitutional or not, so why should any Supreme Court decision not have a political element to it? The question is not whether politics informs SCOTUS’ judgments, but how and to what degree it does.
Because of politics the Supreme Court will sometimes create “new” Constitutional rights. The Right to Privacy, which is inferred, not stated in the Constitution, is then used to create the Right of Choice (abortion). However, these Court-created rights are not necessarily permanent. Already there is talk that SCOTUS went too far in permitting abortion through an implied right to privacy. These Court-created rights are very important to some people, and can cause a lot of turmoil if tampered with. But they ebb and flow over time, strengthening or weakening with the politics of the moment.
Limiting First or Second Amendment Rights is a much more difficult thing to do. If the line is crossed all hell will break loose, and it is not hyperbolic to say that we could even have another revolution if free speech was shut down, or if Washington tried to confiscate all the guns in the country. There will also be a lot of protest and commotion if a “Federal Right” to abortion is overturned. But as upsetting as this would be to certain elements of the country, it would not cause a rebellion. The result would be to return the matter to the States for individual decisions to permit or exclude abortions, which is the proper constitutional place for this decision. The battle over the value of unborn human life would continue as it does today, this time fought on the appropriate political terrain.
The Language of the Second Amendment
As I observed earlier, opponents of the Second Amendment regularly point to part of the language of that Amendment to try to limit these rights (i.e. politically redefine what is “reasonable”). They focus on the phrase “A well regulated militia, being necessary to the security of a free state . . .,” and deduce from this that only government-sanctioned militias can own weapons. However, I don’t believe that a reasonable interpretation of this language limits this right. Rather, I think it simply acknowledges the true nature of the Constitution itself.
The Constitution reflects our God-given inalienable rights articulated in the Declaration of Independence. The first ten of these rights are embodied in a special “Bill of Rights,” thus reinforcing this link to our God-given rights. These are not rights bestowed by man, which can be taken away by man. They come, as do all inherent rights, directly from God.
God has not dictated that a Federal-State system be established with “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, [be] reserved to the states respectively, or to the people.” Instead, man’s God-given inalienable right to Life, Liberty, and the Pursuit of Happiness find expression and protection through provisions such as the Bill of Rights. The Bill of Rights is the agreed-upon vehicle to preserve and protect these core values and their associated rights, and thus are tied directly to the justification for creating the United States in the first place; a justification that begins with a reference to universal truths bestowed by the Creator.
With rights come responsibilities. According to the Declaration of Independence — which serves as the justification for our government to exist, the Constitution representing the details of government given expression through that declaration —men have a responsibility to act to uphold their inalienable rights. When a government acts contrary to the advancement or protection of these rights, its citizenry is duty-bound to oppose it with force, if necessary. In this case, the militia was a manifestation of the public’s responsibility to defend the Constitution and all it stood for.
In effect, the language in the Second Amendment referring to militias wasn’t meant to limit the right to bear arms, but to broaden it!
This fundamental right cannot be limited unreasonably, or it will violate the integrity of the Constitution itself. In America, the people give the government its legitimacy; the government doesn’t exist apart from the people. The “government” is not a living thing, and has no rights apart from what the people grant it. Therefore, that artificial creation (“the government”) cannot assert its so-called rights (because it has none) over an individual, and still act in accordance with the purpose and intent of the Constitution. It cannot take away, unreasonably limit or infringe the right (not ‘man-given permission’) of the people to keep and bear arms.
It is no accident that the right to bear arms comes after the right to free speech in the Bill of Rights. This is the pecking order of the “special rights” embodied in the Constitution. An individual’s right to bear arms is so important, it even comes ahead of the right to protect against self-incrimination, unreasonable search and seizure, and cruel and unusual punishment.
The only right more precious is the right to free speech, which I am using now to defend the other rights embodied in the Constitution. Protecting those rights, however, may ultimately require more than words — which is why we have the Second Amendment.
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Read more articles by Phillip Ellis Jackson
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.
As usual, almost every article I have read concerning the 2nd amendment to the United States Constitution seems to have all of its arguments backward. Whether the writer wants to ban guns or wants to keep them as a fundamental right – no one seems to be able to remember what the country was like when the amendment was written. A Colonial / Early American Militia was formed quickly in response to an emergency. It may have met earlier to drill and practice, but when it was “called up,” i.e. assembled for action, this was done in a hurry. The Militia Organization did not supply arms to the members. The members of the militia brought THEIR ARMS to the organization. You grabbed your rifle, shot and powder horn off the top of the mantel and met at the village green ready to fight off – whoever – Indians, British, French or whatever was the latest threat on the frontier. The key here is that you need your arms in order to form the Militia – the Militia did NOT supply the arms to you. It is true that weapons have now changed and no one needs his or her own tank, machine gun and rocket launcher for the next National Guard Weekend Drill, but the principal has not changed. If necessary, we can assemble, with our arms, to defend ourselves.
Comment by simchick | June 10, 2008
“As usual, almost every article I have read concerning the 2nd amendment to the United States Constitution seems to have all of its arguments backward. …”
Simchick: Since you believe these arguments are “backwards”, perhaps you'd re-write them to show us all the correct thinking?
*** [M]an’s God-given inalienable right to Life, Liberty, and the Pursuit of Happiness find expression and protection through provisions such as the Bill of Rights. The Bill of Rights is the agreed-upon vehicle to preserve and protect these core values and their associated rights, and thus are tied directly to the justification for creating the United States in the first place …
*** When a government acts contrary to the advancement or protection of these rights, its citizenry is duty-bound to oppose it with force, if necessary. In this case, the militia was a manifestation of the public’s responsibility to defend the Constitution and all it stood for. In effect, the language in the Second Amendment referring to militias wasn’t meant to limit the right to bear arms, but to broaden it!
*** It is no accident that the right to bear arms comes after the right to free speech in the Bill of Rights. This is the pecking order of the “special rights” embodied in the Constitution. An individual’s right to bear arms is so important, it even comes ahead of the right to protect against self-incrimination, unreasonable search and seizure, and cruel and unusual punishment.
*** The only right more precious is the right to free speech, which I am using now to defend the other rights embodied in the Constitution. Protecting those rights, however, may ultimately require more than words — which is why we have the Second Amendment.
Comment by Phillip Ellis Jackson | June 10, 2008
I just thought you might enjoy this from my blog:
Support The Montana Resolution Now So We Might Have A Place To Go If Sen. Obama Is Elected And We Become A Collective Led By The Extreme Left Shepherding Those of Us Who Cherish Our Individual Rights and Responsibilities.
The time has come to throw our support behind the efforts of several Montana Elected Officials in their efforts to get the Supreme Court of the United States to recognize that a decision in D.C. v. Heller that interprets the Second Amendment of the U. S. Constitution as being a “Collective Right” as opposed to an “Individual Right” would violate Montana’s Compact with the United States, the contract by which Montana entered the Union in 1889. (Send a message of support!)
The Montana Resolution’s position finds its basis in the law of contracts, compacts, and treaties and is eloquently set forth in the conclusion of the Resolution’s Argument:
In 1889, Montana and the other several states entered into a contract - struck a bargain. That contract was reduced to writing and is found today as Montana’s Compact with the United States and is recorded at Article I of the Montana Constitution. In that contract, via adoption of the corollary and required Ordinance 1, Montana adopted the U.S. Constitution, definitely including the Second Amendment. Congress and the President, acting as agents for the states, allowed Montana into the union contingent upon Montana proffering an acceptable state constitution. That constitution, as it was accepted by Congress and the President, included the reservation of the right of “any person” to bear arms, a clearly individual right maintained and asserted today in exactly the same verbiage used in 1889.
The arguments set forth in the Montana Resolution make the case that if a collective right is found then the United States would have breached the contract/compact it made in good faith with the people of Montana.[i] This could ultimately lead to Montana deciding that they are no longer in the Union. What would President Obama do? I am drawn to this argument because I believe that the Second Amendment was the founding father’s ace card to protect against the rise of a dictator or fascist government in the United States. The People, each person, might have some degree of power to stand against whoever is threatening to corrupt of the highest principles that were articulated in the Constitution.
So why is this important today? What’s the urgency? If the 08 Election goes as many have said, we could very well have a House and Senate led by a bigger Democratic majority. While many Democrats and Republicans are in the middle politically, basically in touch with the core of American values and people, and want to work together (I hope) to pass laws that support our values, our interests, and respect our military - given the current political environment, it is hard to do. Especially given that many in today’s Democrat Party seem highly influenced by an extreme left that makes a lot of us feel as though they really do hate America, despise our military and our principles. My opinion of the legislative process that this 2006 Congress, led by Sen. Reid and Rep. Pelosi, has operated under is that they are only interested in vilifying their way towards legislation. They do not appear interested in making legislation that protects individual liberties, allows us to quickly be energy independent, protects our economy or fosters individual responsibility. What they do seem to be intent on doing is creating the ultimate nanny state where the voters will be so dependent on them that they never get thrown out of office.
Additionally, there exists the distinct possibility that the Executive Branch might be led by the most liberal and inexperienced person ever to pursue the office, Sen. Obama. This is a person who has not been looked at very closely by the main stream media and the more we discover, the more the Senator’s past and current associations appear very suspect. This is a person whose campaign has been given a pass by the media for most things that they would have jumped on had it involved Sen. Clinton or Sen. McCain. If it were not for Talk Radio we would not have found out about any of Sen. Obama’s warts. The media and Obama supporters are also complicit in trying to cover up issues that continue to follow the Senator.[ii] This is a person if you look at his upbringing, past mentoring, and associations point to a life view that believes the government must control all aspects of our lives. This is a person that doesn’t know the difference between Memorial Day and Veteran’s day.[iii] I could go on and on.
Taken together, what this means is:
m That the Supreme Court have activist judges appointed when openings occur.
m That we will lose more and more access to opposing views. Talk Radio will be in jeopardy. It is the only voice that presents any news or opinions different from the mostly liberal main stream media.
m That our economy will have a drastic down turn because taxes will be increase on corporations to the point that they will not be competitive. They will only pass the extra cost on to the consumers (you and me). They will be forced to decrease their work force to reduce costs to stay as competitive as they can be.
m AND, The Second Amendment will be eviscerated.
This is why we should support the Montana Resolution. When the remaining 49 states go into their deep decline, they will be the model that we can look to for the way forward. They are good people, with strong ties to the earth, practical people, reasoned people and they are a part of a dying breed of people that still have a concept of limited government. We all need to be reminded of that. I do understand that the government will not let Montana withdraw from the Union. I’m a rural Independent Voter.
[i] See http://www.worldnetdaily.com/index.php?fa=PAGE.view&pageId=56914
[ii] See http://citizenwells.wordpress.com/ and http://larrysinclair0926.wordpress.com/
[iii] See http://www.wnd.com/index.php?fa=PAGE.view&pageId=65449
Comment by ZachJonesIsHome | June 10, 2008
You are missing my point — I agree with you. My comment is why the framers of the constitution mentioned the militia in the first part of the sentence. Not that we shouldn't have the right to bear arms. Hell, I wish they never mentioned the militia in the first place and just said something on the "…right to defend ourselves." It is when we discuss the militia that the problems arise because it tends to be misinterpreted as only the militia should have the arms. However, the 18th century historical context of using a militia for self defense (even if it is to oppose the existing government) is why the phrase "…well regulated militia" is mentioned first. Believe me, I have every intention of keeping my gun. It's my "Right."
Comment by simchick | June 10, 2008
Phil, excellent essay as usual. But, after following this issue for almost 40 years, I don’t think logic and analysis of the Constitution will ever impress the gun control folks. Firearms are a visceral issue to those who want to eliminate private ownership of firearms – and, let’s be honest, that’s what the fundamental issue is, not regulation, not safety classes, not the appearance or configuration of the weapon.
Many Americans are afraid of firearms, among their other fears and phobias. Using logic to quell those fears is like explaining a roller coaster to a 12 year old in terms of engineering and physics – acceleration, angular momentum and centrifugal force. 12 year olds can’t grasp roller coasters in those terms, they relate on a much more emotional level.
We’re currently witnessing a roller coaster war in the Bay area among the two leading amusement and theme parks. One park builds a giant, death defying ride and the other park tries to top them. The latest addition, the Fireball, shoots riders through a ring of fire and then water while twisting and turning at high speed. My young niece is both fascinated and frightened by this ride – that’s the whole point. The parks know this and don’t advertise the various safety features, the types of construction materials, the inherent stability of the engineering design – what 12 year old cares about engineering features? And, what gun control advocate cares about Constitutional logic?
Many people are frightened by firearms based on the damage they can do, but at an even deeper level they are frightened by any form of violence. Such folks don’t care about the Bill of Rights, how the weapon looks or the capacity of the clip, whether a militia specifically means the National Guard or just ordinary citizens – they want the violence to stop so the fear will stop and they don’t care how we go about stopping their fear.
Like 6 Flags and Great America, the media and our entertainment industry capitalize on this fear and fascination with violence. Mel Gibson and Danny Glover grew wealthier with the hit movie series “Lethal Weapon”. Within their scripts, they cast aspersions on the NRA as a tribute to political correctness, they discharged their weapons in each movie more times than the entire Los Angeles police dept. does within a single year and they made lots and lots of money. But this unrelenting focus on violence frightens many Americans – and frightens them beyond what even your logic and persuasive powers have the ability to assuage.
Naturally, the gun control folks must use logic and reason to present their case. But, underneath the attempt to appear psychologically rational, the argument is: “I’m scared, I don’t like being scared and I want someone to do something about it – now”.
The countervailing argument is that guns are needed to protect yourself and your family from people who want to hurt you. It’s that simple, yet that argument is also unacceptable to the gun control folks. Self defense still means violence and gun control advocates don’t want to envisage or discuss self-defense. And yes, individual Americans can’t defend liberty by opposing the armed forces of our government (or other governments) with deer hunting rifles. But, the need for protection arises when the armed forces of our government can’t or won’t oppose those trying to kill you.
Unfortunately, situations where the policeman isn’t your friend and Uncle Sam isn’t your personal super hero are recurring and somewhat prevalent. Imagine the thoughts of those folks on United Flight 93 as they headed toward the ground on 9/11. They had put their trust in the far ranging and elaborate airport security procedures established by the government. They personally supported disarming passengers as a prudent safety precaution. They listened to the trained airline personnel and, probably at first, took their orders to remain calm and stay in their seats. They relied on government security forces to deal with the hijackers and secure their eventual safe release. And, as sometimes happens, faith in the ability of the government to ensure their safety was naïve and that naiveté cost them their lives.
Or, imagine a very hot, humid 1967 July week-end in Detroit. Rioting and looting broke out in the ghetto. At first, the police tried standard arrest procedures – didn’t work. The National Guard was deployed but initially without bullets for their rifles. Very politically correct - after all, the government didn’t want anyone hurt. But the situation quickly spun out of control and the sniping and shooting started. The police pulled back from the streets into remote defensive lines, they weren’t anxious to get shot by a sniper. The National Guard, those week-end warriors and full time accountants, insurance salesmen or auto mechanics, weren’t anxious to get shot either.
The Guard valiantly did their duty but that duty often entailed firing 50 caliber machine guns indiscriminately at whoever was shooting at them – I know, I saw the tracer rounds whiz past my home. During those 7 days, the government, city and state, completely lost control and left the ordinary citizen at the mercy of the snipers and the looters. Toward the end, the Army was brought in to stop the riot. Their solution and advertised threat was “we will kill you if you shoot at us.” Apparently it was politically acceptable for the Army to use deadly force to establish order after 40+ lives were lost. And they did so with impressive efficiency, a sniper was promptly gunned down a block from my house on the roof of an apartment building.
The lesson not lost on me as a young man was that the government can’t and won’t protect you in every situation. Politics came before protection; the Democratic mayor bickered with the Republican governor while the city burned. The Detroit police prudently did what any of us would have done, they protected their lives by staying well out of the line of fire, which abandoned the city and its citizens to their own devices. Individual citizens, the 40 or so lives lost, were just statistics to the government and we would do well to remember that when discussing gun control.
The Constitution and Bill of Rights are precious documents, but nothing beats a loaded firearm in your hands when your life is threatened. Violence is sometimes the only solution. The Bill of Rights can’t raise the dead. Gun control works only in the imagination of those naïve folks otherwise known as homicide victims.
Comment by Pat Skurka | June 10, 2008
Simchick: Comments like “As usual, almost every article I have read concerning the 2nd amendment to the United States Constitution seems to have all of its arguments backward. …” don’t quite convey the notion that “You are missing my point — I agree with you.”
Pat: You’re correct that as long as this — or any other issue — is treated emotionally, then it matters very little what the real facts are. This is part of the challenge of moving the country away from abstract notions like “fairness” (which is an entirely personal judgment) to looking at an issue logically and dispassionately within its proper legal/historical/political context. Take care, Phil
Comment by Phillip Ellis Jackson | June 10, 2008
Well done, as usual Phil. One minor caveat. The Bill Of Rights is not about defining or enumerating rights, it is about restrictions on government. The Bill Of Rights has nothing to say about the rights we possess except to the extent that government is restrained from intrusion into certain realms.
From the preamble: "The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added…"
The Bill Of Rights is all about preventing government from abusing its powers.
Comment by Mountain Man | June 11, 2008
MM — I've always viewed these as two sides of the same coin. By identifying our specific rights in the Bill of Rights, it both defines them Constitutionally, and speaks to the inherent limitations of government's power to abridge those rights.
Your point is well taken in that the BOR prevents the government from abusing powers, but as the foundational law of the land, the Constititution "defines" those rights that flow from the Declaration of Independence. In effect the Bill of Rights blend the theory of the DOI with the pragmatics of a law-based constitutional authority.
Comment by Phillip Ellis Jackson | June 11, 2008
Phil,
The 9th amendment speaks to my point: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In other words, just because rights are mentioned does not mean that the intent is define rights or make a list of them.
I really think that the legal climate in which we currently live, which "finds" rights and "defines" rights in the Constitution, that's where the fundamental error is. But if we take hold of the purpose of the Constitution, that is, to create, define, and restrict government, then all this other stuff disappears.
To me, the Declaration and the Constitution are bookends. The Declaration makes grand, universal proclamations about the true state of man, while the Constitution deals with the necessity of creating a government closely defined and carefully limited so that the inherent nature of man is not trampled by oppressive, despotic government.
Comment by Mountain Man | June 11, 2008
MM — I don't think we're in fundamental disagreement. Take care, Phil
Comment by Phillip Ellis Jackson | June 11, 2008
Phil, one point about militias at the time of the writing: A militia could be a company of one because you decided you were a militia. Many militias were larger and did drill. The fundamental issue we face with the Constitution has been the attempts to go around the safeguards that were built in. For example the constitution is a living document with a designed process to make it catch up to changes in the world. Unfortunately, some folks feel that the amendment process cramps their style and therefore have sought new creative ways to make changes like judges consulting other countries legal decisions.
So where does that leave us? Gun opponents know they do not have the votes to amend the constitution therefore they seek the extraconstitutional process of judicial activism to provide a back door way to gather the effect of an amendment without the effort and probable defeat. All they need is a group of judges that believe that interpretation should be updated rather than believing in the amendment process. Guess what…our supreme court is loaded with interpreters not constuctionalists.
Are these individual rights? Yes, and in the coming civil conflict be sure you are both armed and trained. After our recognition of Kosovo we have provided the basis for disolution of the Union. If the anti gun coalition is able to remove weapons from the individual we can plan on losing several states to Mexico and a few others to Islamic Republics. Welcome to the 4th world where being a 3rd world country is a step up.
Comment by Mickey G | June 11, 2008
Dr. Jackson, I have a couple of questions on what I believe is a key part of your essay - your explanation of reasonable limitations of individual rights, particularly pertaining to the First and Second Amendments.
Toward the conclusion of the essay, you wrote:
"The Constitution reflects our God-given inalienable rights articulated in the Declaration of Independence. The First Ten of these rights are embodied in a special "Bill of Rights", thus reinforcing this link to our God-given rights. These are not rights bestowed by man, which can be taken away from man. They come, as do all inherent rights, directly from God."
Do you mean that the right to bear arms is a right derived from God as an inherent right?
If so, this belief seems to be contradicted by your passage discussing the reasonable limitation of individual rights directly preceding the quotation above.
The Second Amendment has no "reasonable limitation" provision - it simply states that "the right of the people to keep and bear arms, shall not be infringed". In your view, does the language regarding the free militia being necessary for the security of a free state provide the language required to read a reasonable limitation standard into the Amendment? It seems a stretch.
Finally, if such a reasonable limitation standard does exist in both the First and Second Amendment, who decides what a reasonable limitation is? In reality, of course, it falls to the Supreme Court to make such decisions - do you believe that the Supreme Court should make decisions regarding what is or is not a reasonable limitation of your right to bear arms, or your right to free speech?
Finally, any acknowledgement that the right to bear arms can be limited if that limitation is deemed reasonable changes the debate from a strict construction question - "the right of the people to keep and bear arms, shall not be infringed" - to the following: "is the limitation placed on the right to bear arms reasonable?" Is this your belief? Certainly much more room for argument in the latter phrase.
Respectfully,
Comment by DED | June 11, 2008
DED — Great questions all. Let me go through your comment point by point to respond.
“Toward the conclusion of the essay, you wrote: ‘The Constitution reflects our God-given inalienable rights articulated in the Declaration of Independence. The First Ten of these rights are embodied in a special "Bill of Rights", thus reinforcing this link to our God-given rights. These are not rights bestowed by man, which can be taken away from man. They come, as do all inherent rights, directly from God.’ Do you mean that the right to bear arms is a right derived from God as an inherent right?”
*** That sentence was followed by “God has not dictated that a Federal-State system be established with ‘the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, [be] reserved to the states respectively, or to the people’ [i.e. the 10th Amendment]. Instead, man’s God-given inalienable right to Life, Liberty, and the Pursuit of Happiness find expression and protection through provisions such as [these in] the Bill of Rights. The Bill of Rights is the agreed-upon vehicle to preserve and protect these core values and their associated rights, and thus are tied directly to the justification for creating the United States in the first place; a justification that begins with a reference to universal truths bestowed by the Creator.
To put it a different way, the DOI articulated our God-given inalienable rights to Life, Liberty, etc,” while the Bill of Rights is an effort to give some concrete examples/details of these Rights. However, just defining those rights in concrete terms isn’t enough. The right to Life, Liberty, etc. also carries with it a responsibility to protect and advance those rights. As I continued, “According to the Declaration of Independence — which serves as the justification for our government to exist, the Constitution representing the details of government given expression through that declaration —men have a responsibility to act to uphold their inalienable rights. When a government acts contrary to the advancement or protection of these rights, its citizenry is duty-bound to oppose it with force, if necessary. In this case, the militia was a manifestation of the public’s responsibility to defend the Constitution and all it stood for. In effect, the language in the Second Amendment referring to militias wasn’t meant to limit the right to bear arms, but to broaden it!”
To put it in a different way, if the Constitution/Bill of Rights does not provide a mechanism for the citizens to protect and advance those rights, those rights are subject to being arbitrarily revoked by the actions of other men. One way to protect and advance those rights is to enshrine Free Speech in the Bill of Rights. But words are not always enough. Thus, the Second Amendment was created, as well as other provisions to the Bill of Rights (such as the 4th and 5th amendments). This is why I’ve argued that the BOR has to be viewed as a package, not as individual Amendments independent of one another. Some rights protect the rights of other rights.
Which gets to your second question: “The Second Amendment has no ‘reasonable limitation’ provision - it simply states that ‘the right of the people to keep and bear arms, shall not be infringed’.
*** The amendment says more than this: “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.” Once again, we need to look at the Bill of Rights in its entirety — the language of each individual amendment, plus each of the other 9 amendments — to discern its meaning and intent. Once we do this we have a foundation discussing such concepts as “reasonable limitations”. Reasonableness cannot be discerned by simply looking at a fragment of an amendment, or one amendment in the BOR independent of the other 9.
Which leads to your next question/observation: “In your view, does the language regarding the free militia being necessary for the security of a free state provide the language required to read a reasonable limitation standard into the Amendment? It seems a stretch.”
*** As I said above, I don’t think we can look only at the Second Amendment independent of the remaining Bill of Rights to assess reasonableness. Which leads to your next question: “Finally, if such a reasonable limitation standard does exist in both the First and Second Amendment, who decides what a reasonable limitation is? In reality, of course, it falls to the Supreme Court to make such decisions - do you believe that the Supreme Court should make decisions regarding what is or is not a reasonable limitation of your right to bear arms, or your right to free speech?”
*** Excellent question and observation. The power of the Supreme Court is part a reflection of its co-equal constitutional status, and in part a reflection of the political maneuverings during the first years of the country to define the limits and possibilities of its own power.
Some people argue that SCOTUS has gone too far in asserting its authority. But there’s a very real difference between making this observation in 1800 and 2000. In 1800, practices and procedures were being created that would shape the very essence of our government. Some things became “accepted” as constitutional, others did not. The Alien and Sedition laws did not survive, but judicial review did. Whether judicial review went “too far” or not is no longer subject to legitimate debate; it has existed as a core part of our constitutional government for 200+ years. By contrast, a new power asserted by the Court today could be legitimately argued/challenged.
So, to answer your question, there is no longer any legitimate debate as to the POWER of the Supreme Court to decide what is a “reasonable” limitation on any provision of the Constitution. What is legitimately debatable is whether SCOTUS is acting in a strict constructionist manner, or making extra-constitutional law. This is a political argument disguised as a legal question, which is why “new rights” like the Right to Privacy continue to be challenged 30+ years after Roe v. Wade, but the power of the Court to decide issues of such magnitude is not challenged.
Which leads to your final question: “Finally, any acknowledgement that the right to bear arms can be limited if that limitation is deemed reasonable changes the debate from a strict construction question – ‘the right of the people to keep and bear arms, shall not be infringed’ - to the following: ‘is the limitation placed on the right to bear arms reasonable?’ Is this your belief? Certainly much more room for argument in the latter phrase.”
*** This is why I said the following: “’Reasonable’ is partly the product of a political compromise, and partly what the courts and politicians can get away with. Since the Constitution operates in a political environment, it cannot be separated from politics. Politics created the Constitution, and dictated the timing of when the first 10 Amendments were ratified. ‘Politics’ even dictated SCOTUS’ role in declaring a law Constitutional or not, so why should any Supreme Court decision not have a political element to it? The question is not whether politics informs SCOTUS’ judgments, but how and to what degree it does.”
There is no clear-cut, undisputed standard of reasonableness. It’s slugged-out in the political/judicial/legislative arena. My contention is that if we try to understand what the BOR truly is, and look at it as a package and not as a series of unrelated phrases, then we can rally support for a practical application of reasonableness that does not violate the core integrity of the amendment.
There will always be limitations on anything we do, which includes the exercise of our Bill of Rights. We can’t slander people in the name of free speech, and shoot guns into the air at will in the name of the Second Amendment. Our challenge is to educate the public on what standards must accompany any evaluation of “reasonableness”, so as to avoid simply inserting one person’s personal judgment into setting this standard.
All of which, I contend, means understand what the Bill of Rights are, and how they should be viewed, as I tried to lay out in my original essay.
Hope this addresses some of your questions. Phil
Comment by Phillip Ellis Jackson | June 11, 2008