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The Right to Bear Arms and Popular Sovereignty

by Charles C. W. Cooke
They are inextricably linked

Were I to develop a penchant for masochism and to run for elected office, my opponent would no doubt profit immensely from informing the voters that I was against the Second Amendment before I was for it. He would be correct. To grow up in modern Britain is to be marinated in that country’s aversion to anything that slips the surly bonds of moderation, and I absorbed by osmosis the idea that, on the question of guns, my American friends were quietly batty. I had no objection to guns per se — I even enjoyed firing one every now and again — but I reflexively wondered aloud, “Who needs an AR-15? What is all this nonsense about ‘liberty’? If you want to play with weapons, join the military.”

Private gun ownership was, I thought, a historical vestige: an unhappy accident of its era that had been cynically hijacked by witless men with a pecuniary interest in death and rather too much testosterone. “I will demonstrate,” I quixotically promised in the first draft of my thesis proposal, that the “so-called right to bear arms” is a “dangerous fiction.” But, damn it all, my budding ideology was quickly overturned. The right to bear arms is not a fiction at all. Those Americans who spoke of liberty, of the Constitution, and of unalienable rights? They were spot on. My friends, who looked loftily down their noses? Not so much.

Brutally put, it makes little philosophical sense for the elected representatives of a government that is subordinate to the people to be able to disarm those people. As an enlightened state may by no means act as the arbiter of its critics’ words, it may not remove from the people the basic rights that are recognized in the very document to which it owes its existence. “Shall not be infringed” and “shall make no law” are clear enough even for the postmodern age. To ask, “Why do you need an AR-15?” is to invert the relationship. A better question: “Why don’t you want me to have one?” And far from being the preserve of two-bit reactionaries, this, I discovered to my consternation, is a deeply — nay, radically — liberal principle, and one of the most beautiful ideas in the history of beautiful ideas. It changed my politics forever.

For all the craven lip service that they pay to the right to bear arms, its opponents on both sides of the Atlantic fail to appreciate that it is utterly inextricable from the timeless philosophy that underpins the American republic, and central to the relationship between the citizen and the state. Disputes about the scope of the Second Amendment to one side, the right to bear arms itself may well be the ultimate right in any free society. It has long been denied to undesirables. If black people were citizens, Justice Taney reasoned with horror in Dred Scott v. Sandford, they would be able “to keep and carry arms wherever they went.” Free men who are masters of their government have that right, he concluded, but slaves and subjects do not.

It is perverse that I should have had to move to America to enjoy the right, for it was my countrymen who first recognized it. In his Commentaries on the Laws of England, Sir William Blackstone cited the right to bear arms as one of the fundamental liberties enjoyed by all Englishmen. Alas, all have not always enjoyed it. Now, at least, British gun law guarantees the equal sharing of miseries. But it was not always so. The long history of disarmament in Britain tallies grotesquely with the lists of those marked out as second-class citizens: Catholics were excluded from the 1689 Bill of Rights (“the subjects which are Protestants may have arms for their defence”), and the aristocracy, terrified of an uprising of the disenfranchised minority, regularly took it upon itself to disarm the perceived threat. In Canada, the first serious gun-control laws, passed between 1911 and 1913, were contrived to keep guns out of the hands of non-British immigrants, away from people who were regarded by authorities as inferior, uncivilized “disciples of the torch and bomb” whose behavior was disgraced by “bad habits, notions, and vicious practices.”

America’s history is worse. In the 17th century, the Massachusetts and Plymouth colonies prohibited the sale of guns to Indians, while the “Black Codes” of 18th-century Louisiana required free French colonists not only to disarm but to beat “any black carrying any potential weapon.” Blacks have had it especially tough. Many post-Revolutionary state constitutions reserved the right to bear arms to “freemen,” which, naturally, meant whites. After the Civil War, the Democratic party’s own “Black Codes,” which were designed to prohibit freed slaves from owning guns in the South, had the same execrable purpose. The first draft of the 1871 Ku Klux Klan Act rendered it a federal crime to “deprive any citizen of the United States of any arms or weapons he may have in his house or possession for the defense of his person, family, or property.”

As recently as 1968, gun-control measures were a veiled attempt to disarm black people. “The Gun Control Act of 1968 was passed not to control guns,” the anti-gun Robert Sherrill contends, “but to control blacks, and inasmuch as a majority of Congress did not want to do the former but were ashamed to show that their goal was the latter, the result was that they did neither.” In debates over gun-control measures, tyranny is usually posited as potential, not actual. But what possible resonance could smug assurances that “it couldn’t happen here” have had for these excluded men? It did happen here.

In his “Remarks on the First Part of the Amendments to the Federal Constitution,” published in the Federal Gazette on June 18, 1789, and widely reprinted, Pennsylvania delegate Tench Coxe explained to the reading public that the proposed Second Amendment affirmed the people’s “right to keep and bear their private arms” against “civil rulers” and “military forces” that “might pervert their power to the injury of their fellow citizens.” His article adumbrating the amendment’s meaning prompted its author, James Madison, to write Coxe a warm letter, noting that the process would “be greatly favored by explanatory strictures of a healing tendency, and is therefore already indebted to the co-operation of your pen.”

As Coxe implied, the oft-repeated notion that the Second Amendment exists as an anachronism or was passed to protect “sport shooting” or “hunting” is as defective as the idea that the First Amendment exists to protect Shakespeare or the Beatles. Certainly it does those things, too. But primarily such protections were chiseled deep into American scripture in order to afford the people the perennial scope to take their government to task.

We are in thorny territory here, wading inexorably into a discussion of potential insurrection that typically invites scornful calls of “sedition” or charges of Red Dawn fantasies. Such thoughts are certainly unpleasant — not to be expressed in polite company. But politics is not ballet. Advocates of the right to bear arms should acknowledge readily that they are arguing for the right to possess deadly force, avoiding the allure of “political language,” which, Orwell complained, “is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.” Firearms are designed to kill and to maim. Defenders of the right to bear arms should not run away from this truth, and I will not. Instead we might point out that it is not the material question at hand. Nobody doubts what guns do. The important question is, Who in societygets such weapons?

John Locke, who was crucial to the Founders’ thinking, held that we are possessed of the inalienable right to own our bodies. From this we get the “life, liberty, and the pursuit of property” construction that was subtly changed in the Declaration to make more explicit the personal nature of property. And from the notion that one controls one’s body and may defend it, we get the attendant right to bear arms; you can’t defend yourself with parchment. The progressive notion that the police and armed forces should hold a monopoly on the legal violence necessary to defend each individual thus betrays both foundational principles and the traditionally auxiliary role of law enforcement in American society. The police, as the Supreme Court has repeatedly held, are employees of the public, not the sole enforcers of public order. Americans who would leave the means of violence in the hands of the state and, inevitably, the criminals would remove the means of self-defense from the one group in American life for whom the social compact was constructed: the People. This will not do.

When Thomas Jefferson drafted his constitution for Virginia, the proposed qualification that “no freeman shall be debarred the use of arms” was undoubtedly designed to explain that slaves were excluded from the right. But in doing so, it betrayed something else. To found a government on the principle that “We the People” are sovereign but to fail to entrust those for whom the state was constructed with the means by which, as a desperate last resort, that state might be forcibly dissolved would have been to undermine the whole edifice. “Governments” in Europe, wrote James Madison, “are afraid to trust the people with arms.” Not so America.

These ideas had a profound effect on me, ushering in the startling realization that, far from merely being a larger England, the United States had become something quite different: an incubator of lost or diluted British freedoms. As the Liberty Bell was originally cast in England but rang out in America, so those guarantees of the “rights, liberties, and immunities of free and natural-born subjects” have found their truest expression across the Atlantic. “That rifle on the wall of the labourer’s cottage or working class flat is the symbol of democracy,” wrote George Orwell in 1941. “It is our job to see that it stays there.” In Britain and beyond, that rifle has long been taken away. England’s bell has fallen silent. Americans would do well to ensure that the crack in theirs grows no larger.

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