Law & the Courts

Our 21st-Century Second Amendment

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What part of ‘unalienable’ do you not understand?

A  progressive correspondent asks: “If you were drafting the Constitution in 2017, would you include the Second Amendment?”

It’s an ignorant question, but one that was asked in good faith, and the answer may be illuminating to some of our friends who are mystified by conservative thinking on the question.

The short answer is: Yes, of course a 21st-century Bill of Rights should codify the right to keep and bear arms. The document does not create the right; the right precedes the document, which merely recognizes it and ensures that the government is constrained when, inevitably, its all-too-human members are tempted to violate that right.

Progressives take a tabula rasa view of the human condition, the human animal, the human experience, and human society. In this view human beings, individually and corporately, can be shaped into . . . whatever we desire to shape them into. Rights, in this understanding, come from the state: We decide together, through democratic and other political means, what rights and obligations people are to have, and the state acts (in theory) as our instrument in that matter. If you take that view, then the progressive attitude toward the right to keep and bear arms — that it is more trouble than it is worth and that it therefore should be reduced or eliminated altogether — is entirely understandable.

Conservatives take a different view, one that is rooted in the nation’s foundational philosophy. The American premise is a theological premise: that all men are endowed by their Creator — not the state — with certain unalienable rights. For our Founding Fathers, who were steeped in the Anglo-Protestant liberal tradition, this was not only the truth but the “self-evident” truth. The right to keep and bear arms, like the right to speak one’s mind, worship as one sees fit, and petition the state for redress of grievances, is not the king’s gift to give or to withhold — the matter was settled by no less an authority than God Himself. For those who are not of a religious cast of mind, the same conclusion can be arrived at through the tradition of natural law and natural rights, which the Christian liberals of the 18th century understood as complementary to their discernment of Divine intent. Whether one believes that man was created by God or by evolutionary processes, the conclusion ends up being the same: Man has reason, individual and corporate dignity, individual and corporate value, and these are not subject to revision by any prince, power, or potentate.

Put another way: The right to keep and bear arms would still be there without the Second Amendment. Like the right not to suffer political or religious repression, it exists with or without the law. It is an aspect of the human being, not an aspect of the governments that human beings institute among themselves. The state does not grant the right — the state exists because the right exists and needs protecting from time to time. The state protects our rights from criminals and marauders, and the Constitution protects our rights from their protectors.

No doubt that sounds like a lot of crazy talk to many of our progressive friends. “Rights from God! Imagine!” That is a critical failure of our most progressive institution, the schools, which consistently neglect — or decline — to provide our students with even a rudimentary education in American civics and the history of the American idea. It isn’t that the modern left-winger is obliged to accept the intellectual and philosophical basis of the American order, but he ought to understand that things are the way they are for a reason. The idea that the Second Amendment could simply be repealed — that’s that! — isn’t only an attack on the right to keep and bear arms: It is an attack on the American constitutional order per se. That our progressive friends often are so pristinely ignorant of the moral order underpinning the American Founding is one of their great intellectual failures. They do not understand the American idea, and, as a result, they do not really understand their own ideas, either.

Why did the Founders care so deeply about the right to keep and bear arms, to such an extent that they put it on equal footing with freedom of speech and freedom from arbitrary government violence? That’s a complicated question. There were concerns unique to the Founding era, among them the libertarian dread of standing armies. Without a permanent military, the ability of the people to organize quickly and effectively against threats foreign and domestic was essential. One possible threat was that of tyrannical domestic government, something that weighed heavily on the minds of the Founders, who knew Roman history. (To say nothing of English history!) Our modern progressive friends scoff at the notion that the Second Amendment could really allow ordinary Americans to frustrate the tyrannical ambitions of a modern federal government with the modern U.S. military — gunships, nukes, and all — at its command. That’s probably true, though one need not be a sophisticated military tactician to appreciate the fact that the mighty America military has been bogged down for 15 years in Afghanistan, unable to tame a raggedy gang of modestly armed rustics — there is more to warfare than armaments.

Why did the Founders care so deeply about the right to keep and bear arms, to such an extent that they put it on equal footing with freedom of speech and freedom from arbitrary government violence?

But there is much, much more to that question than revolutionary fantasies. The government’s ability to maintain order does break down from time to time, if only locally and temporarily. The Second Amendment is not only for imaginary revolts against overbearing authorities in Washington. It is for events such as the Los Angeles riots of 1992, during which the local police authorities comprehensively failed in their duty to protect the lives and property of citizens. This is an example of something that often eludes our progressive friends: Government is an instrument, a tool. Anything that is permissible for government to do is permissible for the free people who form that government to do. We deputize the police to protect our lives and property because we desire that this crucial and dangerous work be done in a fashion that is orderly, predictable, and in accordance with the rule of law. We want to avoid feuds and vendettas and the like. But we do not forfeit our right of self-defense when we delegate self-defense to the state. That is universally acknowledged: That is why shooting a burglar in your house isn’t murder or impersonating a police officer. When the water was high in Houston and people needed help, those in a position to give that help did not say: “Well, I’m sure somebody from the county will be along in a bit. Good luck!” They rendered aid, even in cases in which doing so probably involved breaking a law or two.

The right to bear arms is intrinsically linked to citizenship, another fact well understood by the Founders but lost to many of our contemporaries. From the ancient world through feudal Europe to the American colonies themselves, some people enjoyed the right to bear arms and some did not. In the latter category were serfs and slaves. Slaves and free blacks were of course widely and generally prohibited from owning weapons in the antebellum United States: Under Louisiana law, a black man carrying a cane in public was subject to summary execution; Maryland law forbade free blacks from owning dogs, which were considered a potential weapon. If you desire to know who is really considered a full citizen, look at who is permitted to bear arms. For the Founders, a society in which only government officials enjoyed the right to bear arms could not be a proper democratic republic at all, because the vast majority of the people would have been excluded from full citizenship.

Again, there is nothing requiring the modern American progressive to share this philosophy. But we ought to ask ourselves what the alternative is. The short answer is totalitarianism, in principle if not in practice. If rights come from the state, and if we enjoy our liberty and our property only at the sufferance of the state, then nothing is outside the state, and there are no limits on it other than passing democratic whimsy. (If you think “whimsy” is too loose, consider this progression: Reagan, Bush, Clinton, Bush, Obama, Trump . . . ) If everything is negotiable, then there are no rights at all, properly understood.

So, a Second Amendment even in the 21st century? Yes. There are permanent things and non-negotiable truths. The Second Amendment did not create the right to keep and bear arms; it was created by it. Much has changed since 1776, including, of course, the efficacy of small arms. But some things have not changed, including the nature of human beings and the nature of their relations with one another. Neither technological progress nor political regress obviates any of that. That’s what “unalienable” means.

READ MORE:

Against the Misguided Moral Superiority of Gun Controllers

Bret Stephens Indeed Does Not Understand the Second Amendment

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