“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

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,

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.

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.

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.

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.

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

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.