Worth the read.... The Second Amendment as an Expression of First Principles March 2013 • Volume 42, Number 3 • Edward J. Erler Edward J. Erler Co-Author, The Founders on Citizenship and Immigration The following is adapted from a lecture delivered on February 13, 2013, at Hillsdale College’s Kirby Center for Constitutional Studies and Citizenship in Washington, D.C. We are currently mired in a frantic debate about the rights of gun owners. One example should suffice to prove that the debate has become hysterical: Second Amendment supporters, one prominent but less than articulate member of Congress alleges, have become “enablers of mass murder.” Special animus has been directed against so-called assault rifles. These are semi-automatic, not automatic weapons—the latter have been illegal under federal law since the 1930s—because they require a trigger pull for every round fired. Some semi-automatic firearms, to be sure, can be fitted with large-capacity magazines. But what inspires the ire of gun control advocates seems to be their menacing look—somehow they don’t appear fit for polite society. No law-abiding citizen could possibly need such a weapon, we are told—after all, how many rounds from a high-powered rifle are needed to kill a deer? And we are assured that these weapons are not well-adapted for self-defense—that only the military and the police need to have them. Now it’s undeniable, Senator Dianne Feinstein to the contrary notwithstanding, that semi-automatic weapons such as the AR-15 are extremely well-adapted for home defense—especially against a crime that is becoming more and more popular among criminals, the home invasion. Over the past two decades, gun ownership has increased dramatically at the same time that crime rates have decreased. Combine this with the fact that most gun crimes are committed with stolen or illegally obtained weapons, and the formula to decrease crime is clear: Increase the number of responsible gun owners and prosecute to the greatest extent possible under the law those who commit gun-related crimes or possess weapons illegally. Consider also that assault rifles are rarely used by criminals, because they are neither easily portable nor easily concealed. In Chicago, the murder capital of America—a city with draconian gun laws—pistols are the weapon of choice, even for gang-related executions. But of course there are the horrible exceptions—the mass shootings in recent years—and certainly we must keep assault weapons with high-capacity magazines out of the hands of people who are prone to commit such atrocities. The shooters in Arizona, Colorado, and Newtown were mentally ill persons who, by all accounts, should have been incarcerated. Even the Los Angeles Times admits that “there is a connection between mental illness and mass murder.” But the same progressives who advocate gun control also oppose the involuntary incarceration of mentally ill people who, in the case of these mass shootings, posed obvious dangers to society before they committed their horrendous acts of violence. From the point of view of the progressives who oppose involuntary incarceration of the mentally ill—you can thank the ACLU and like-minded organizations—it is better to disarm the entire population, and deprive them of their constitutional freedoms, than to incarcerate a few mentally ill persons who are prone to engage in violent crimes. And we must be clear—the Second Amendment is not about assault weapons, hunting, or sport shooting. It is about something more fundamental. It reaches to the heart of constitutional principles—it reaches to first principles. A favorite refrain of thoughtful political writers during America’s founding era held that a frequent recurrence to first principles was an indispensable means of preserving free government—and so it is. The Whole People Are the Militia The Second Amendment reads as follows: “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.” The immediate impetus for the amendment has never been in dispute. Many of the revolutionary generation believed standing armies were dangerous to liberty. Militias made up of citizen-soldiers, they reasoned, were more suitable to the character of republican government. Expressing a widely held view, Elbridge Gerry remarked in the debate over the first militia bill in 1789 that “whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia.” The Second Amendment is unique among the amendments in the Bill of Rights, in that it contains a preface explaining the reason for the right protected: Militias are necessary for the security of a free state. We cannot read the words “free State” here as a reference to the several states that make up the Union. The frequent use of the phrase “free State” in the founding era makes it abundantly clear that it means a non-tyrannical or non-despotic state. Justice Antonin Scalia, writing for the majority in the case of District of Columbia v. Heller (200, rightly remarked that the term and its “close variations” were “terms of art in 18th-century political discourse, meaning a free country or free polity.” The principal constitutional debate leading up to the Heller decision was about whether the right to “keep and bear arms” was an individual right or a collective right conditioned upon service in the militia. As a general matter, of course, the idea of collective rights was unknown to the Framers of the Constitution—and this consideration alone should have been decisive. We have James Madison’s own testimony that the provisions of the Bill of Rights “relate [first] . . . to private rights.” The notion of collective rights is wholly the invention of the Progressive founders of the administrative state, who were engaged in a self-conscious effort to supplant the principles of limited government embodied in the Constitution. For these Progressives, what Madison and other Founders called the “rights of human nature” were merely a delusion characteristic of the 18th century. Science, they held, has proven that there is no permanent human nature—that there are only evolving social conditions. As a result, they regarded what the Founders called the “rights of human nature” as an enemy of collective welfare, which should always take precedence over the rights of individuals. For Progressives then and now, the welfare of the people—not liberty—is the primary object of government, and government should always be in the hands of experts. This is the real origin of today’s gun control hysteria—the idea that professional police forces and the military have rendered the armed citizen superfluous; that no individual should be responsible for the defense of himself and his family, but should leave it to the experts. The idea of individual responsibilities, along with that of individual rights, is in fact incompatible with the Progressive vision of the common welfare. This way of thinking was wholly alien to America’s founding generation, for whom government existed for the purpose of securing individual rights. And it was always understood that a necessary component of every such right was a correspondent responsibility. Madison frequently stated that all “just and free government” is derived from social compact—the idea embodied in the Declaration of Independence, which notes that the “just powers” of government are derived “from the consent of the governed.” Social compact, wrote Madison, “contemplates a certain number of individuals as meeting and agreeing to form one political society, in order that the rights, the safety, and the interests of each may be under the safeguard of the whole.” The rights to be protected by the political society are not created by government—they exist by nature—although governments are necessary to secure them. Thus political society exists to secure the equal protection of the equal rights of all who consent to be governed. This is the original understanding of what we know today as “equal protection of the laws”—the equal protection of equal rights. Each person who consents to become a member of civil society thus enjoys the equal protection of his own rights, while at the same time incurring the obligation to protect the rights of his fellow citizens. In the first instance, then, the people are a militia, formed for the mutual protection of equal rights. This makes it impossible to mistake both the meaning and the vital importance of the Second Amendment: The whole people are the militia, and disarming the people dissolves their moral and political existence. Arms and Sovereignty The Preamble to the Constitution stipulates that “We the people . . . do ordain and establish this Constitution for the United States.” It is important to note that the people establish the Constitution; the Constitution does not establish the people. When, then, did “we the people” become a people? Clearly Americans became a people upon the adoption of its first principles of government in the Declaration of Independence, which describes the people both in their political capacity, as “one people,” and in their moral capacity, as a “good people.” In establishing the Constitution, then, the people executed a second contract, this time with government. In this contract, the people delegate power to the government to be exercised for their benefit. But the Declaration specifies that only the “just powers” are delegated. The government is to be a limited government, confined to the exercise of those powers that are fairly inferred from the specific grant of powers. Furthermore, the Declaration specifies that when government becomes destructive of the ends for which it is established—the “Safety and Happiness” of the people—then “it is the Right of the People to alter or to abolish it, and to institute new Government.” This is what has become known as the right of revolution, an essential ingredient of the social compact and a right which is always reserved to the people. The people can never cede or delegate this ultimate expression of sovereign power. Thus, in a very important sense, the right of revolution (or even its threat) is the right that guarantees every other right. And if the people have this right as an indefeasible aspect of their sovereignty, then, by necessity, the people also have a right to the means to revolution. Only an armed people are a sovereign people, and only an armed people are a free people—the people are indeed a militia. The Declaration also contains an important prudential lesson with respect to the right to revolution: “Prudence . . . will dictate,” it cautions, “that Governments long established should not be changed for light and transient causes.” It is only after “a long train of abuses and usurpations pursuing invariably the same Object,” and when that object “evinces a design to reduce [the People] to absolute Despotism,” that “it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” Here the Declaration identifies the right of revolution, not only as a right of the people, but as a duty as well—indeed, it is the only duty mentioned in the Declaration. The prudential lessons of the Declaration are no less important than its assertion of natural rights. The prospect of the dissolution of government is almost too horrible to contemplate, and must be approached with the utmost circumspection. As long as the courts are operating, free and fair elections are proceeding, and the ordinary processes of government hold out the prospect that whatever momentary inconveniences or dislocations the people experience can be corrected, then they do not represent a long train of abuses and usurpations and should be tolerated. But we cannot remind ourselves too often of the oft-repeated refrain of the Founders: Rights and liberties are best secured when there is a “frequent recurrence to first principles.” The Current Legal Debate In District of Columbia v. Heller, the Supreme Court handed down a decision that for the first time held unambiguously that the Second Amendment guaranteed an individual the right to keep and bear arms for purposes of self-defense. Writing for the majority, Justice Scalia quoted Blackstone’s Commentaries on the Laws of England, a work well known to the Founders. Blackstone referred to “the natural right of resistance and self-preservation,” which necessarily entailed “the right of having and using arms for self-preservation and defense.” Throughout his opinion, Justice Scalia rightly insisted that the Second Amendment recognized rights that preexisted the Constitution. But Justice Scalia was wrong to imply that Second Amendment rights were codified from the common law—they were, in fact, “natural rights,” deriving their status from the “Laws of Nature and of Nature’s God.” In his Heller dissent, Justice John Paul Stevens boldly asserted that “there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.” In a perverse way, Justice Stevens was correct for the same reason Justice Scalia was wrong: What the Framers did was to recognize the natural right of self-defense. Like the right to revolution, the right to self-defense or self-preservation can never be ceded to government. In the words of James Wilson—a signer of the Declaration, a member of the Constitutional Convention, and an early justice of the Supreme Court—“the great natural law of self-preservation . . . cannot be repealed, or superseded, or suspended by any human institution.” the-second-amendment-as-an-expression-of-first-principles
James Wilson is relatively unknown by most Americans, yet his influence on the underpinnings of the Constitution and on others and their thinking at the first Constitutional Convention were more significant than is credited. He was the John Locke of the Convention.
I remember when I was first introduced to his writings. Powerful stuff.... that the antis will no doubt ignore.
Specifically, white males of a certain age group, and they were forced to serve, as stated in the Militia Acts. (Blacks were included in a subsequent act.) With the last Militia Act, only volunteers did annual training with the National Guard, and the government resorted to conscription. Today, it's just registration (and only for males) with the possibility of conscription.
They will. They tend to ignore any of the writings and events that influenced the founding fathers, making the assumption that the founding fathers lacked the intellect of modern thinkers, particularly if their narratives are contrary to GCA and Leftist agendas. Yet most of the founding fathers were extremely well versed in the philosophical renaissance of thinking of governance that had been perculating for a couple centuries preceding the crafting of the Constitution by some of the greatest minds not only of the time, but there words still resonate today. I would venture to speculate few posters, particularly, those of GCAs and the left could match their grasp of governance theory or knowledge of relevant history.
The anti-gun left isn't interested in a practical, philosophical, legal, or historical discussion on the matter - they can't argue past their slogans and fallacious appeals to motion, ignorance and/or dishonesty.
Nothing like needing to shut down a large percent of a state school system due to a crazy young lady with a pump shotgun who is not old enough to legally buy a can of beer instead of a firearm. Now the young women are getting involved in this craziness .
I have no idea what you're talking about, how it relates to my post, or how it relates to the topic in general.
She was old enough to enlist in the military. Women have engaged in their own craziness, sometimes just as horrific. Ever hear of Eileen Wuornos? Lots of women idealize serial killers and violent criminals, sending the worst of them love letters in prison. This lady was obsessed with the Columbine killers, just as some were obsessed with Charles Manson. I blame the gun control culture that demonizes guns as evil and then glorifies those who use them to commit evil acts. When I was young, nobody blamed the gun. Guns were recognized as tools, kept for personal security and the harvesting of game, and even though kids were taking guns to school as a matter of habit, school shootings didn't happen. Ever.
Such is nothing more than a side effect of the united states media obsessing over mass shooters. Anytime one of these individuals does something wrong, the media is airing their photos, repeating their names over and over, and covering the personal and intimate details of their lives for everyone to see, giving them a level of fame and recognition that they would never receive otherwise. It does nothing more than encourage other individuals to commit similar acts if an ever-increasing effort to outdo one another. The more people they murder, the more famous they become as a result, and the more jealous others become as a result until they are spurred into following the lead.
